14 Jul Is The Israeli-Hezbollah War an International Armed Conflict?
Here is a nice summary of the present conflict and some basic information about Hezbollah from the Council on Foreign Relations website. Bottom line is this is a political organization in Lebanon that has twenty-three seats in the 128-member Lebanese Parliament and two ministers in the Lebanese government. In this sense it is clearly not like Al Qaeda, but it is not like the Taliban in Afghanistan either.
So are the attacks and counter-attacks between Israel and Hezbollah an international armed conflict? How do we label this war? Is it really a war between two nations or is it more akin to a war between a terrorist organization and a nation state. I am having a hard time getting my head around how to conceptualize this as a matter of international law. Comments most welcome.
UPDATE: Also check out this press summary of the debate at the United Nations. A Lebanese representative described it as a “widespread barbaric aggression waged by Israel at this very moment against my nation” while the “Israeli Government ha[s] held Lebanon responsible for Hizbollah’s acts, even though the Lebanese Government … declared that it was not aware of the incident, that it did not take responsibility for it, and did not endorse what had happened.”
Roger, these are defintely the tough questions that are on the table. I make no claims at answers but I’ll do some thinking aloud (well, figuratively aloud) to pick up the conversation you started.
Without revisiting the issue of when/whether combatting a terrorist organization would be international armed conflict (shades of Hamdan), I’ll comment on whether state responsibility can be ascribed to Lebanon for the actions of Hezbollah (of course there’s also the issue of Iranian and Syrian repsonsibility but I will also set those aside for now).
The argument against ascribing responsibility to Lebanon is that Hezbollah is an indepndent group that is more like an insurgency within Lebanon than “part” of the Lebanese government (parliamentary seats notwithstanding). This is because the writ of Lebanon’s central government simply does not run in the south, parliamentary seats or no. Hezbollah has effective control and is acting based on its (and possibly’s Iran and/or Syria’s) own wishes. Lebanon is unable to stop Hezbollah and it should not be held responsible for Hezbollah’s acts.
The argument in favor of Lebanese responsibility highlights the fact that the Lebanese government has allowed Hezbollah to become intertwined with governmental organs (seats in the Parliament, government ministries, etc.) Critics question whether Lebanon even tries to oust
Hezbollah or whether it simply allows it to act. Giving it safe haven–even if they do not share in all of Hezbollah’s actions–is enough to case state responsibility.
I don’t know which is correct but here are some thoughts… Article 9 of the Draft Articles on State Responsibility reads:
One way I think the analysis could run is,assuming that the Lebanese government had not been directly involved in any rocket attacks, then, at first blush any counter-strike by Israel should have been aimed at Hezbollah and only Hezbollah. However, if the ongoing rocket attacks by Hezbollah are actions that “call for the exercise of [governmental] authority” by Lebanon and Lebanon had the ability to hamper Hezbollah and chose not to do so, then there may be a basis for arguing Lebanese state responsibility. Based on this, in order to avoid state responsibility Lebanon need not have had to have been 100% succesful in eradicating Hezbollah but it must have made a real attempt to prevent such rocket attacks (or other threats to Israeli security).
One big caveat: if Israeli actions either (a) illegally targetted Lebanon (as opposed to Hezbollah) or (b) made it unreasonable for Lebanon to field a fighting force in Southern Lebanon to deal with Hezbollah, then the argument for state responibility is substantially weakened.
If theis line of reasoning is correct (I don’t know that it is, I am tossing it out for comment) then in order to avoid the caveat the crucial facts may actually be the ones prior to the rocket strikes earlier this week. If up until that time there had there been a situation that would have called upon Lebanon to exercise government authority and it refused to do so, then the most recent set of rocket attacks may have been able to be ascribed to Lebanon.
I don’t know enough about the actual abilities of Lebanon’s military to venture a guess as to whether Lebanon would have been able to mount a credible campaign against Hezbollah but I leave this idea open for anyone who wants to assess its strength or weakness.
Maybe this misses your point, Chris, or perhaps it is too simplistic an analysis on my part, but why would you necessarily need to impute liability to Lebanon for the actions of Hizbullah by looking soley at the actions of the Lebanese? Hasn’t Israel rendered the Lebanese government de facto responsible by attacking the airport at Beirut and infrastructure between Lebanon and Syria. Wouldn’t those attacks against the infrastructure of another sovereign state qualify this as an international armed conflict?
Nonliquet:
I understand your point and, yes, once Israel attacked Lebanon itself it was an attack by one state upon another.
However, I was interested in the issue prior to that which is whether Israel would have been justified, as a legal matter, in blaming Lebanon for the rocket attacks.
If so, then Israel’s bombing of Lebanon may itself be legally justifiable. (I say “may” because issues of proportionality would still need to be assessed.)
If not, then there is an international wrong by the state of Israel vis a vis the state of Lebanon.
Professors Alford and Borgen,
I wish I could comment in depth (as this is one of my areas of study), but many other things pressing. I just want to note a few things.
First, the Lebanese military is far too weak to disarm Hizbullah.
Media pundits seem hell-bent on dragging Iran and Syria into the conflict. Few people in this country have studied Hizbullah (or Hamas for that matter) in depth, hence much of what passes for expertise is just (pardon me) bullshit. As a matter of fact, most Americans, academics included, lack a basic grasp of the history and politics of the Middle East, let alone the history of the Israeli-Palestinian conflict.
Notice how dead civilians are talked about: We ‘humanize’ the Israeli death figures (a grandmother and grandson) while the dead Lebanese and Palestinians are cited as mere statistics (over 60 dead).
Why is it never reported that this current round of military conflict began when the Israelis shelled a beach in the northern Gaza Strip, killing three children and other civilians? The kidnapping of an Israeli soldier is invoked as the precipating event, but that is simply not the case. Hamas said it would respond to the killing of Palestinians, and it did. And no doubt the Israelis knew this.
Why do we incessantly hear of Israel’s right to self-defense but little or nothing of the right to self-defense for the Palestinians?
The IDF is well-versed in provoking militants to react, giving it the necessary excuse/rationale to respond in the disproportionate manner for which it has become infamous in the Middle East.
Were not the two Israelis soldiers kidnapped in a border region that is disputed territory?
Hizbullah and Hamas are of course quite distinct organizations (Shi’ite, Sunni, etc.). Nevertheless, recent events and Hamas’ ideology (see Saad-Ghorayeb’s book on Hizbullah) have prompted the former to come out in active support of the latter, particularly when it was made plain that the Israelis were determined to dismantle the democratically elected government led by Hamas. Hizbullah has for some time been participating in parliamentary politics (the comment that ‘the Lebanese government has allowed Hezbollah to become intertwined with governmental organs’ seems ill-considered, as there were reasons plenty for allowing, indeed encouraging, Hamas to participate in the democratic process…), providing a model for Hamas to follow, a possibility the Israelis won’t allow. A big mistake….
Again, no time to expand on thoughts here or comment in detail, perhaps later.
I’m very grateful that you’ve raised this discussion….
Legally speaking isn’t the Lebanese government legally responsible for actions occurring within its territory? (Trail Smelter).
If Hizb. is a non-state armed group and the Lebanese government is incapable of preventing cross border attacks I believe Israel is justified in use of force against Hizb. but not the Lebanese govt.
If the Lebanese government has provided even passive support for Hizb. however, I thought the supportive government was liable for the actions of the armed group located on its territory thus justifying Israeli action against both Hizb. and the Lebanese government?
Also, has Israel reported its actions to the SC as per Art. 51?
Roger, I’ve posted a response to your question, solely on the IHL, jus in bello issue on my blog, here.
Professor Borgen, thank you for the clarification.
If I now understand your reasoning (and to oversimplify it in the process):
In your first comment you proposed a binary. The first is if Lebanon could exercise control and failed to exercise that control then it is liable. The second is if Lebanon could not exercise control then it is not liable.
If (1) is true then Lebanon can be attacked. If (2) is true then only Hizbullah can be attacked.
But what if there is a third which is:
(1) The government of Lebanon is a separate and distinct entity from Hizbullah and (2) the government of Lebanon cannot control Hizbullah (3) however, bureaucratic minsitries and instrumentalities of commerce have a commingling of Hizbullah/Government control. If those conditions are true, then can those mixed targets be attacked?
Let me make it a little more specific. For example, you have the Beirut airport that is controlled by the Lebanese government. However, Israel claims shipments of arms from Iran and Syria are coming in through that airport which go to Hizbullah. Lebanon cannot shut down those shipments to Hizbullah without creating a civil war. Otherwise, Lebanon has complete control over the airport and the substantial use of that airport is for lawful purposes. One can’t say the Lebanese government doesn’t have effective control over the airport, but on the other hand one can’t say that Hizbullah doesn’t have some use of the airport for its attacks on Israel.
That’s where the tension lies; under the two part analysis, it’s either total control by the Lebanese and a failure to exercise that control or total absence of control. It’s either, to modify Professor Alford’s example, the Taliban in Afghanistan (where they are in control and fail to exercise control over terrorist groups or outright aid in the attack) or Al’Qaeda in Northern Pakistan (where Pakistan is not in control). The attacks on Beirut don’t seem to fit neatly in either situation
Given that in situation three there is always one liable party, I’d say there would be sufficient culpability for step one in the analysis. But then, I would favor an analysis applies a more rigorous proportionality review given that it is a mixed, rather than pure target.
Chris,
Your analysis of the law on state responsibility is to me of great interest, especially as it intersects with the jus ad bellum and the jus in bello. The road you take is one that I fundamentally methodologically disagree with, however, even though I think most scholars (and the ICJ in Oil Platforms, for example) would instinctivelly opt for your approach.
Your approach basically joins the law of state responsibility with the law on self-defense, thereby disregarding the distinction between primary and secondary rules, with the law on self-defense belonging to the former, and the law on state responsibility to the latter. I personally don’t think it is necessary for a State to be responsible for an act of a non-state actor operating in its territory, in order for another State to lawfully respond in self-defense to an attack by that non-state actor.
If Israel could take Lebanon to the ICJ, for example, I don’t think Lebanon should be held responsible for abducting the two soldiers (Article 9 of the ILC Articles would not be sufficient – that is not the sort of situation contemplated by the commentaries, cf. the Yeager case before the Iran-US Claims Tribunal). However, I think Israel still has the right to initiate a proportionate response in self-defense, even if this response hurts not only Hezbollah but also Lebanon. This is I believe the classical case of self-defense in response to an armed attack by a non-state actor, as first contemplated in the famous Caroline incident.
I discuss this conflation between primary and secondary rules at much greater length in my forthcoming piece on State responsibility for genocide in the next issue of the EJIL.
It seems to me that there are quite a few mixed-up concepts in the comments so far.
First, as to IHL, it matters only if the armed conflict is between two or more states. This could have been the case at the stage where only Hezbollah was doing the fighting, but then only on the grounds that their actions were attributable to Lebanon. But seeing as Israel has now attacked Lebanon (and not just its territory, but also installations of the state), this question is largely academic. There is now an international armed conflict in the sense of IHL.
This does not mean that Israel has in any way rendered Lebanon de facto responsible for Hezbollah’s actions (contra Non liquet). It couldn’t possibly do that. Israel has created an international armed conflict, but it has in no sense determined the – jus ad bellum – question of whether it was right to attack Lebanon, on the basis of the right of self-defence, Lebanon being responsible for the ‘armed attack[s]’ (Article 51 of the Charter) of Hezbollah.
(This is assuming that the Article 51 claim rests on state responsibility for the armed attack. The ICJ has said as much also in Armed Activities and in its advisory opinion on the Israeli Wall, but, of course, many people disagree, including the Judges Simma and Kooijmans in Armed Activities, and – not least – Marko Milanovic)
In short, because the jus ad bellum and the jus in bello work independently of one another, the responsibility of Lebanon plays no role at all in deciding whether there is an armed conflict between Lebanon and Israel after Israel’s attacks.
Insofar as Lebanon’s responsibility does still play a role, i.e. on the question whether Israel can act in self-defence (on the state-centric view not held by Marko Milanovic), the Trail Smelter principle is irrelevant (contra Rebus Can’t Stantibus – great name, by the way).
Trail Smelter – and later Corfu Channel – established that a state has a duty to apply due diligence in preventing harm occurring to other states from actions within its territory (or otherwise under its control and jurisdiction – see Corfu Channel). This is a primary rule of international law, a prohibition (aso known as sic utere tuo ut alienam non laedas, or too briefly as neminem laedere). It is not a rule of attribution. Therefore, failure to apply such due diligence does not convert the harmful action of private individuals into acts of the state.
This is why the ICJ’s judgment in the Tehran Hostages case was divided into two stages: at first, Iran was only responsible for its failure to protect the US Embassy and Consulate, but the actions of the protesters/students were not Iran’s. (Only the acts in the second stage of events were transformed into acts of the state, after the Ayatollah had endorsed them.)
Of course, none of this talk about attribution matters even to the Article 51 claim if Marko Milanovic is right. Or maybe it would, because Israel has overstepped the boundary set – very reasonably – by Mr Milanovic, in attacking not only Hezbollah, but also Lebanon.
As usually, I find myself in agreement with what Tobias says.
Lebanon is responsible for failing to discharge its positive, due dilligence obligation to prevent Hezbollah from attacking Israel. It is not, however, responsbile for the attacks by Hezbollah themselves. How this analysis of state responsibility figures into the jus ad bellum is a different matter.
Take 9/11 and Afghanistan as an example. Suppose that the US action in Afghanstan was lawful as a matter of self-defense, regardless of the Security Council. As far as I’m concerned, that does not automatically mean that Afghanistan was (and still is!) responsible as a state for the 9/11 attacks. It is responsible “only” for allowing Al Qaeda to operate from its territory. Or take the fact of the Caroline and transpose them to the present as another example of a lawful instance of self-defense against an attack by a private actor, even if it impacts another state. As Tobias notes, a similar factual pattern emerged in Congo v. Uganda, but the ICJ decided to avoid the issue, contrary to Judges Simma and Kooijmans.
The lawfulness of the present Israeli actions depend on Israel’s respect for the principle of proportionality, which exists separately both in the realms of the jus ad bellum and in the jus in bello.
‘The lawfulness of the present Israeli actions depend on Israel’s respect for the principle of proportionality, which exists separately both in the realms of the jus ad bellum and in the jus in bello.’ That speaks volumes. I cannot see how anyone could make an argument that Israel has any respect whatsoever for the principle of proportionality. Let’s not forget what is still going on in the Gaza Strip. No small bit of irony in Israel calling upon Lebanon to recognize UN resolutions when Israel has historically demonstrated contempt for same in its own case.
And I’m touched about all of the concern for the question of Israeli self-defense: where is/was such concern for the Palestinian right to self-defense, particularly given the fact that they have been denied the right to self-determination and the asymmetrical nature of the conflict in general. As Richard Falk reminds us, ‘Since 1967, Israel has administered a military occupation of the West Bank, the Gaza Strip, and East Jerusalem in consistent and relentless defiance of the overwhelming will of the organized international community.’
Why the comparative silence about the applicability of International Humanitarian Law in the Occupied Territories? Fortunately, some folks care about such things, see http://www.ihlresearch.org/opt/portalhome.php
This is the website for the International Humanitarian Law Research Initiative which treats the topic of IHL in Israel and the Occupied Territories.
So, it’s clear I’m leaving the difficult international law questions to the experts above. But international politics is part of the equation here so I’ll continue with a few more observations.
Recall that it was Israel’s earlier invasion and occupation of Lebanon that directly led to the formation of Hizbullah. Indeed, their military campaigns and policies there inspired the likes of Osama bin Laden, to wit:
‘Readers have asked me to what Bin Laden was referring when he said he first conceived the idea of attacking US skyscrapers when the Israelis destroyed the “towers” of Beirut.
Beirut had been among the more advanced cities in the Arab world. I saw it in 1968 and 1974 before the civil war when it was called the Geneva of the Middle East. Although there was fighting in Beirut 1975-1981 by local militias, in fact by the early 1980s the situation had calmed down substantially and the economy was roaring back.
Then Ariel Sharon took it into his head to invade Lebanon in 1982. Sharon always has plots within plots. He wanted to install a far-rightwing government of his liking in Beirut and reshape the Eastern Mediterranean. And he wanted to murder the Palestinian leadership in Beirut, just bomb them all or otherwise rub them out. Although the Palestine Liberation Organization was an annoyance to Israel, it had been substantially defeated by the Syrians in the late 1970s and was extremely weak in 1982. In a way, Sharon’s attack was made possible by the Camp David Accords, in which Egypt made a separate peace. Sharon took advantage of the neutralization of Egypt to launch an aggressive war on Lebanon. Egyptians were boiling mad as a result.
The horrible Israeli siege of Beirut in summer of 1982, which lasted for weeks, involved the brutal and indiscriminate bombing of the city. Many of the “towers” that were destroyed contained hundreds of innocent Beirutis. Sharon’s proposed puppet ruler, Bashir Gemayyel, used to keep posters of Hitler in his locker at college. He was promptly assassinated and the whole scheme fell apart.
The invasion killed some 18,000 persons, half of them innocent civilians. During this period Sharon turned the task of guarding the disarmed and helpless Sabra and Shatila Palestinian refugee camps over to his allies, the fascist Phalangist paramilitary. The latter promptly murdered hundreds of defenseless Palestinians.
One of the 9/11 hijackers, Ziad Jarrah, was a Lebanese Sunni who was 8 when the Israelis invaded his country and wrought so much destruction. He obviously was deeply traumatized by the experience. The Israeli invasion of Lebanon in 1982 was a wanton act of aggression and destruction that ended up radicalizing the Lebanese Shiites and leading them to develop the technique of suicide bombing. A majority of Israelis was disgusted with the war, and in the aftermath Sharon was politically marginalized for two decades. Somehow he has managed to rehabilitate himself and now pursues his agenda of killing without any let or hindrance.
The US has since the late 1970s coddled the Likud Party about its aggression, whether in the Occupied Territories or in Lebanon (part of which it occupied for 20 years!), which has helped to generate anger among Arabs at the United States. A whole generation of Arab politicians and intellectuals was marked by humiliation and helplessness in the face of Sharon’s Lebanon war.’ (Professor Juan Cole in 2004)
This is something we all might take some time to reflect on when examining Israel’s ‘lastest round of iron-fist collective punishments’ (Helena Cobban).
Off to work….
I find the comments very interesting and enlightening. A few comments and queries based on the discussion so far: First, Marko writes:
I agree but the crux of my comment has to do with the question of who Israel may claim a right of self-defense against. As I said, if responsibility can only be imputed to Hezbollah then only Hezbollah’s assets may be attacked. This would call into question the bombing of, say, the Beirut airport. That is not a Hezbollah asset; bombing its runways is clearly an act against the government of Lebanon as a whole. If Israel is claiming a right of self-defense vis a vis the government of Lebanon, then it needs to be shown that that government can be reasonably viewed as responsible for the attack. (This also applies to Marko’s later comment regarding Afghanistan: if Afghanistan is “only” responsible for allowing al Qaeda to act, then what is a proportional response? Did the U.S. overstep its bounds in uprooting the Taliban as a whole?) Viewed in this way, I am not conflating primary and secondary rules but rather trying to use recognized rules of responsibility to decide against whom the right of self-defense may be justly applied.
I think Tobias’ subsequent analysis is very persuasive if we look at the bombings as an isolated incident. The problem, though, is if the government of Lebanon knew of the ongoing danger to Israel posed by Hezbollah (clearly they did), could have done something about it (that is open to question), and did not.
If that is the case, then I think Tobias’ analysis needs to shift because the question is no longer whether Hezbollah’s actions can be imputed to Lebanon ex post facto, but rather whether the government of Lebanon acquiesced to (or deliberately caused) a situation in which there is an ongoing security threat to the state of Israel. The temporal aspect is important. To that extent, I think the second part of Tehran Hostages—which in this case may concern implicit as opposed to explicit endorsement—may be relevant by analogy, particularly taking into account that Hezbollah is part of the Lebanese government. (I should note that I do not knwo fi the actual facts would bear up an arguemnet that the government of Lebanon actually did acquiesce or support Hezbollah; I am just trying to tease out what the legal princple should be.)
One general point related to Marko’s and Tobias’ comments: I think I may read the gloss of history (Iranian hostages, Afghanistan, Oil Platforms, etc) a bit differently. As I said, while I generally agree with Tobias’ analysis as far as it goes, I think there is much less patience in international politics today for states arguing that they should not be held responsible for violent groups operating within their borders and causing security risks outside of their borders, when those states could have hampered the group’s operations and chose not to do so. To cabin state responsibility at that point to a state being “only” responsible for harboring that group, without imputing that group’s activities to the state as a whole not only undercuts the deterrent effect of rules but also does not seem to comport with (what I perceive to be trends) in responding to terrorism.
One other point: regardless as to the proper party against whom Israel may claim a right of self defense–only Hezbollah or Lebanon more broadly–I do think there is a serious question as to the proportionality of the response undertaken.
Thank you all for your latest comments.
I quite agree that there is a serious proportionality problem on any view.
I am not at all sure I agree with Mr Milanovic’s interpretation of Article 51, under which the ‘armed attack’ does not have to come from a state for there to be a right of cross-border self-defence, but I do accept that such an argument can validly be made, and all the more so with the support of recent state practice (including the criticism of the Israeli actions by other governments, which has largely focussed on the proportionality point). For my part, I would think that, because Article 51 operates as a justification for a breach of Article 2(4), any case of self-defence must first engage Article 2(4). This is not necessarily the case, as where the acts of self-defence are directed against private aggressors in the defender’s own territory, in occupied territory or on the high seas.
Also, I take it that State C cannot act in self-defence against State B, if State A was the original aggressor and unless State B itself attacks State C. If so, why would C’s right of self-defence require any less than a full-blown armed attack from State B, if the attack originated not from a foreign state, but from private actors? The´obvious answer is: because B has not acted against these private actors <i>within its own territory</i>. But is this more than an attempt at justifying forcible countermeasures against B for its failure to observe its <i>Corfu Channel</i>-type due diligence obligation?
Also, I am curious as to what would happen if B had supported A in its armed attack on C. B would thus have violated the prohibition against aiding and abetting the violation of international law of another state (Article 16 of the ILC Articles), but it would not have violated Article 2(4) of the Charter itself, and would therefore not have committed an armed attack on C. Would Milanovic, Simma, Kooijmans, et al., apply Article 51 anyway, as in the case of a private aggressor?
Or is this perhaps governed by the law of neutrality, violations of which would make B an aggressor?
Nor do I think that the argument on the conflation of primary and secondary rules is dispositive of the issue. If ‘armed attack’ in Article 51 means ‘armed attack by a state’, then the article refers back to the rules of attribution. I fail to find any illegitimate crossing of conceptual boundaries in this.
However that may be, I would agree in any event that self-defence against a private aggressor must be directed against that private aggressor, and noone else. This would seem to be a simple consequence of the requirement of proportionality. Attacks against the state will only be necessary, and hence permissible, if that state was responsible for the original attack giving rise to the its right to defend itself. If it was not, then using force against it would smack of forcible countermeasures (formerly: reprisals) for the state’s violation of the <i>Corfu Channel</i> due diligence obligation.
I would, however, be prepared to accept, in reply to Chris Borgen’s interesting reply, that the rules of attribution may well have changed after Afghanistan, at least as far as responsibility for armed action against a foreign state is concerned. It may be unusual to have different sets of secondary rules for different primary rules, but this is certainly not impossible.
Much less does this change my views on the matters of principle, as outlined in my previous comment.
Apologies for repeating the ‘forcible countermeasures’ point. I meant to delete the second reference after adding the first, but forgot.
I have a question regarding the analysis that is being developed in this discussion.
As I understand it, following Marko Milanovic, there is a distinction between Hezbollah’s actions being attributable to the state of Lebanon and the state of Israel having a right to act in self-defence against Hezbollah in a way that impacts on Lebanon. (I realize that not all participants in the discussion share this view.)
But then there seems to be a separate implication that on this analysis, only Hezbollah’s assets should have been attacked, and a related suggestion that by attacking “non-Hezbollah” Lebanese assets, Israel has widened a non-international armed conflict between Israel and Hezbollah into an international armed conflict between Israel and Lebanon. Hence various posts talk about attacking “Lebanon itself” or attacking state infrastructure etc.
However is it not the case that any Israeli military action within Lebanese territory, even against purely Hezbollah targets, would initiate an international armed conflict if it was carried out against the wishes of the Lebanese government?
In that case, the key question as regards the nature of the conflict (international vs. non-international) would not be the nature of the targets struck by Israel but whether the Lebanese government was consenting or not consenting to the use of force, even by Israel against Hezbollah targets. (And the answer to that might be, that it hasn’t made its position known.)
Of course, as various people have pointed out, the proportionality requirement on self-defence would place limits on Israel’s action in any case.
Anthony,
The way I see it, the existence (or not) of an international armed conflict is separate from the legality of Israel’s use of force in the first place. It is an entirely factual matter, and as soon Israel attacked assets of the Lebanese government and protracted armed violence occurred, a state of international armed conflict came into being.
Now, you make quite a good point – any response by Israel to the attack by Hezbollah necessarily impinges on Lebanese sovereignty. My take is that Lebanon would have to live with that as it is either unable or unwilling to deal with Hezbollah itself. The main issues, again, are necessity and proportionality. Even though Israel would be within bounds of IHL/jus in bello to attack Lebanese military facilities, even those unaffiliated with Hezbollah in any way, it would violate the jus ad bellum if it did so, as that would not be an act of self-defense against Hezbollah.
I do want to make another point, though – is not at all clear what is the legal justification professed by Isreal before the international community – is it self-defense against a terrorist non-state actor, or is it self-defense against an armed attack by the state of Lebanon. Isreali representatives specifically said that they considered the abduction of the two soldiers as an act of war by the Lebanese government – see, e.g. here.
On the other hand, in yesterday’s discussion before the Security Council, the Israeli Ambassador was not so clear, and spoke more in the vein of self-defense against terror. See here, at the last page.
In that regard, I do believe a degree of formalism is in order, per the ICJ’s decision in Nicaragua. The only legal justification which I think is relevant is the one Israel itself chooses to make. If they say that Lebanon initiated an armed attack, I would say that that claim is manifestly ill-founded. If they say that they are responding in self-defense against a non-state actor, and violating the sovereignty of Lebanon only to the extent which is absolutely necessary and proportionate, I would (in principle) have much sympathies for such an argument. The reality on the ground is a different matter.
Does it make a difference to any of this if the two soldiers were abducted on Lebanese soil rather than Israeli or disputed territory? I ask this per the account in Asian Times online: ‘It all started on July 12 when Israel troops were ambushed on Lebanon’s side of the border with Israel. Hezbollah, which commands the Lebanese south, immediately seized on their crossing. They arrested two Israeli soldiers, killed eight Israelis and wounded over 20 in attacks inside Israeli territory.’
Given the fact that the Lebanese, whether they support Hizbullah or not, tend to be grateful for their role in compelling the Israelis to leave their country after a twenty year occupation, the abduction of these soldiers in Lebanon might be seen as an act of self-defense, yes? How is this understood from the perspective on international law? How should have Hizbullah dealt with the incursion onto Lebanese land by the Israelis?
please read ‘of international law’
Just as a note responding to the very interesting comments of the day.
Tobias, I was in no way suggesting that jus ad bellum could be assumed merely based on the fact that there was an international armed conflict. Please pardon the lack of clarity in my writing. What I was confused about, and what was subsequently corrected by Professor Borgen, was that I believed the jus ad bellum argument had no bearing on the status of whether there was an international armed conflict. Professor Borgen pointed out that he was asking a different question. As you and Marko have subsequently established, the facts on the ground rather than the jus ad bellum would be determinative of the conflict’s status. And that was really the main point my question was driving at. (Part of me suspects that I didn’t clarify anything at all in that paragraph. Let’s just say I agree with you.)
Marko, I agree with your analysis about the lawfulness of attacking a third-party terrorist group when it might impinge upon the sovereignty of a country. Professor Borgen suggested an interesting development of that theory in state practice with Afghanistan. I also think you can see some of that theory in practice by statements in this current conflict made by President Bush and Secretary Rice that recognize a legal right of self-defense but focus primarily on restraint (Bush’s comment that Israel has the right to defend herself, but not to bring down the Lebanese government; Rice also accepted self-defense but made a stronger push for restraint, see here).
However, in these third category cases of responsibility for asymmetric groups there should be a heightened jus in bello standard given the diminished jus ad bellum standard. I can’t really give firm legal precedent for that position, so I’m advocating more of a policy preference. But I think it’s justified given the risk that countries may abuse the weakened standard.
Marko –
With regards to Israel’s justification I think you are somewhat mistaken in your categorization. Israel didn’t hold Lebanon responsible for the abductions, rather it blamed Lebanon for not acting against Hizbullah earlier as Lebanon was required to by UNSC 1559. As such it seems to fit more into the category of arguments based on a state failing to exercise due diligence, rather then a state initiating an attack.
In any event, whether Israel’s attack on Lebanon (as a state) can be adequately described as self-defence is a moot point. In a number of statements throughout the crisis, and indeed for some time now, Israeli officials have claimed to act in self-defence against a non-State actor. While this may be against the formalism expressed by the ICJ in recent opinions, I think it is in line with the customary development of the law of self-defence. While disallowed by Nicaragua throughout the 1990s there have been numerous examples of states invoking force in self-defence against non-state actors. Above, Tobias notes the treatment of previous Israeli actions which were criticized for being disproportionate. This is a significant shift from how similar behaviour was treated in the 1970s and 80s. Moreover, in the 1990s Tajikistan, US and Senegal (and there maybe other cases) all invoked self defence against non-state actors. These justifications were accepted by a substantial proportion of the international community. As such, there is at least a plausible argument that state practice and emerging opinion juris have overwritten Nicaragua’s interpretation as to when self defence may be invoked. As such attacks against Hizbullah targets, as well as state targets that Israel can connect to Hizbullah are probably legal (though, obviously the proportionality question remains).