Why Al-Kibar Does Not Contribute to Pre-Emptive Self-Defence

Why Al-Kibar Does Not Contribute to Pre-Emptive Self-Defence

Elena Chachko has an interesting post at Lawfare discussing Israel’s recent public acknowledgement of what the international community has long known: that it was responsible for the 2007 attack on the Al-Kibar nuclear reactor in Syria. Although I agree with much of Chachko’s post, I would take issue with what she says about how the failure of states to condemn the attack at the time and to react to Israel’s new acknowledgment of its responsibility might affect the customary status of pre-emptive self-defence:

It would be unwise to jump to the conclusion that the many states that did not protest the Al-Kibar strike instead acquiesced to it, thus indicating their support for a right to exercise preemptive self-defense to eliminate nuclear threats. Still, one could argue that the clandestine and military nature of the Al-Kibar reactor, its proximity to Israel, and the hostility between Israel and Syria rendered Israel’s “last opportunity to stop an existential threat” argument more plausible now than when it invoked it to justify the destruction of Osirak—a distant, declared, reactor built with French assistance. Under this reasoning, the relatively muted international response could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.

In sum, the question of whether international law now recognizes a right to preemptive self-defense against nuclear threats remains highly contested. But the evolution of the international position from “Opera” to “Outside the Box,” even after Israel acknowledged its role in the latter, is telling. Both scholars and politicians will likely take this evolution into account in discerning state practice on this question going forward.

With respect to Chachko, this argument is problematic. As she acknowledges, Israel has still not articulated any legal justification for the Al-Kibar attack, much less claimed that it represented a legal act of pre-emptive self-defence:

It remains true, however, that we do not know what Israel’s legal position actually was. Israel has yet to provide a public legal justification for the Al-Kibar operation under jus ad bellum. The newly released interviews with members of Israel’s leadership at the time, including then-prime minister Ehud Olmert, did not explicitly address the legal aspects of the decision to carry out the strike. The only  I found in the reports about the strike to the role of lawyers in vetting the operation was a brief mention of then-attorney general Meni Mazuz’s involvement in drafting the government decision that authorized the operation.

Because Israel has not provided a legal justification for the attack, the attack cannot help establish the legality of pre-emptive self-defence. As the ICJ made clear in the Nicaragua case, practice unaccompanied by opinio juris does not contribute to modifying customary rules concerning the use of force (para. 207; emphasis mine):

The Court has no jurisdiction to rule upon the conformity with international law of any conduct of States not parties to the present dispute, or of conduct of the Parties unconnected with the dispute; nor has it authority to ascribe to States legal views which they do not themselves advance. The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.

For similar reasons, the “relatively muted” response by states to the Al-Kibar attack also cannot help establish the legality of pre-emptive self-defence. It is true that silence in the face of practice can count as acquiescence to a proposed customary rule. But that is only the case when — to quote the ILC’s new Draft Conclusion 3 regarding the formation of custom — “the circumstances called for some reaction.” No reaction is required when a state does not provide a legal justification for its actions. In 2007, Israel did not even acknowledge that it was responsible for the attack. And even now, in 2018, Israel is not claiming that it acted in self-defence. So it would not simply be “unwise” to read too much into the international community’s response to the Al-Kibar attack. It would be legally inappropriate to do so.

I also disagree with Chachko’s claim that silence “could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.” I think it actually suggests the opposite: it is extremely likely that states — particularly those in the Non-Aligned Movement (NAM) — remained silent about the Al-Kibar attack precisely because Israel neither acknowledged that it was responsible for the attack nor claimed that the attack was a legitimate act of pre-emptive self-defence. As Chachko rightly points out — echoing the Spector/Cohen blog post  she links to — there were sound political and strategic reasons for states, particularly in the Middle East, not to get too worked up about the 2007 attack. In the absence of Israel claiming self-defence, NAM’s silence was legally costless. But it is difficult to believe that it would have remained silent in the face of a legal claim that pre-emptive self-defence is lawful. After all, NAM has consistently denounced pre-emptive self-defence as unlawful.

Israel’s acknowledgment that it was responsible for the Al-Kibar attack is politically important. But it has no legal implications whatsoever.

Topics
Courts & Tribunals, Featured, Foreign Relations Law, International Criminal Law, International Human Rights Law, Middle East, National Security Law
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Elena Chachko
Elena Chachko

Thanks for reading and for the thoughtful response! A few comments: • I am not entirely sure that we disagree on the first issue you flag. As you note, my post makes it clear that the absence of a public Israeli legal justification for the strike under jus ad bellum means that there is no opinio juris (that we know of). Therefore, one of the elements necessary for the identification of customary international law is still missing. • As for the legal significance of the silence of other states, ILC Draft Conclusion 10(3) provides: “Failure to react over time to a practice may serve as evidence of acceptance as law (opinio juris), provided that States were in a position to react and the circumstances called for some reaction.” In other words, prolonged silence of the kind that we witnessed around the Al-Kibar strike—including after Israel’s recent acknowledgment—may serve as evidence of opinio juris if a reaction to the strike was “called for” and feasible. You seem to argue that the silence of many states concerning the Al-Kibar strike does not “count” for CIL purposes here because a reaction was not “called for” given the absence of a public Israeli legal… Read more »

Anon
Anon

NAM counts for nothing; it exists only on paper. One of the principal founder members, Yugoslavia has ceased to exist; Egypt is in a state of perpetual turmoil; India, I am not sure can be termed non-aligned today (though they may not have formally joined any alliance or pact). There is not much to speak about Ghana and Indonesia. Whether they denounce or not does not matter.

Anon
Anon

Your personal comments apart (which shows more about your traits and competence), what did the 120 odd states achieve? Could they prevent the Cold War? Or could they force an end to the Cold War? Were they able to maintain international peace during the Cold War period? What did the NAM achieve? Zilch, Kevin! The states of Africa that you are referring to, kindly enlighten the number of conflicts that took place between 1945 and 1991 and the magnitude of human suffering caused by these conflicts. I reiterate that NAM counted for nothing and has outlived its utility. Academics like you can keep making reference to this movement.

Please clarify what do you mean by “See India (that weak, meaningless state)”

Andrew Garwood-Gowers

Elena and Kevin,

Thanks for your discussion of this incident (which I wrote about in 2011 in the Journal of Conflict and Security Law – https://academic.oup.com/jcsl/article/16/2/263/895153)

Regarding the reaction from NAM, it took them almost 5 years but in 2012 they condemned the Israeli action. This is from the NAM Final Document issued at its 16th Annual Summit:

The Heads of State or Government underscored the Movement’s principled position concerning non-use or threat of use of force against the territorial integrity of any State. In this regard, they condemned the Israeli attack against a Syrian facility on September 6, 2007, which constitutes a flagrant violation of the UN Charter and welcomed Syria’s cooperation with the IAEA in this regard.

NAM Final Document 2012/Doc.1/Rev.2, para 176 available at: https://www.iranwatch.org/sites/default/files/nam-iransummitfinaldocument-083112.pdf