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

by Kevin Jon Heller

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.

http://opiniojuris.org/2018/04/03/why-the-al-kibar-strike-does-not-contribute-to-the-customary-jus-ad-bellum/

6 Responses

  1. 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 justification for the strike. But that is not the only possible reading of DC 10(3). The strike itself or Israel’s recent acknowledgment might also constitute circumstances in which a reaction was “called for”. Note that the ILC commentary on DC 10(3) does not limit the circumstances in which a reaction would be “called for” to the public articulation of a legal position by the party engaging in the practice at issue. The commentary refers to cases in which “the practice is one that (directly or indirectly) affects—usually unfavourably— the interests of the State failing or refusing to act”. This is a rather broad category. And it does not appear to be an exhaustive articulation of when a reaction might be “called for”.

    • I agree that the claim that the relative silence in response to the Al-Kibar strike might suggest that some states are willing to entertain preemptive self-defense against nuclear threats in similar circumstances is speculative. But it appears that your interpretation of the silence of many states also entails a considerable degree of speculation. We do not know with certainty that the NAM states opposed the strike on legal grounds, considering its arguably unique characteristics, any more than we know that those states (and others) in fact supported it. Either way, I only suggest that the view that the silence implies support will likely factor into future debates regarding state practice on preemptive self-defense against nuclear threats; not that it is necessarily correct.

  2. Elena,

    Thanks for the response. I agree that our positions are probably not that different. But I would still push back on the idea that silence can count as acquiescence to a customary rule when the acting state has not actually invoked the customary rule in question. It may seem obvious that Israel was acting on the basis of pre-emptive self-defence, but that is not the only interpretation. Perhaps Israel knew full well that the Al-Kibar attack was unlawful but was willing to do it anyway. In that case, as Nicaragua points out (and I find it interesting you don’t even acknowledge the case in your comments), the attack could actually count as state practice in support of the illegality of pre-emptive self-defence — states that want to modify a customary rule through physical practice have to make their intent clear. And as we both know, Israel is not exactly shy about offering legal defences for its actions that are at odds with the international community’s general understanding of international law!

    To be clear, I am not saying that Al-Kibar reinforces the illegality of pre-emptive self-defence. My point is only that, as the ICJ has said regarding its own practice, states cannot be expected to speculate on the opinio juris of other states, denouncing practices that may or may not reflect a view of international law that they disagree with. At a minimum, acquiescence can only be found to rules specifically invoked by the acting state.

    Finally, I would submit that my interpretation of NAM’s silence, though admittedly speculative, is less speculative than yours. It is undeniable that NAM has consistently denounced pre-emptive self-defence of any kind as unlawful — most notably in 2005, a mere two years before Al-Kibar. I find it difficult to imagine that NAM’s position changed dramatically by 2007 — particularly in response to a use of force by Israel!

  3. 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.

  4. And with a few strokes on the keyboard, Anon (of course) dismisses the views of 120 states, including every state in Africa other than South Sudan, most of Latin America, and most of Asia. Remarkable, if typical, arrogance.

    Not surprisingly, states that are part of NAM don’t agree. See India (that weak, meaningless state) here.

  5. 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)”

  6. 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

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