[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,
