06 Apr Question on 2007 Strike Against Syria and Anticipatory Self-Defense
[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002]
There was, of course, a great deal of international opinion offered concering the legality of the Israeli strike on the Osirak reactor in 1981. But as two recent articles stress — see this piece by Georgetown student Leah Schloss and this piece by Australian professor Andrew Garwood-Gowers [which can also be found here if that link doesn’t work] — there has been virtual silence from the international community about the 2007 strike on the Syrian nuclear facility at al-Kibar.
Is that account accurate? I assume that because Israel has never acknowledged its purported involvement, it has also never offered an international law defense of the operation. (True?) Is it also the case that virtually no other nations have said anything one way or the other about its legality?
If so, what, if anything, does the 2007 operation portend for the development of the law of self-defense? I’d welcome reactions to the Schloss and Garwood-Gowers articles and the question more generally, particularly from those who do not assume that all anticipatory strikes violate the Charter.
[UPDATE: I’d also welcome comments on a broader question epitomized by this example–one that it appears will be increasingly relevant as time goes on: What role, if any, can covert actions play in the creation or evolution of custom if no nation acknowledges the action in question and therefore there is no agreed upon version of the relevant facts and arguable legal justifications? Does the answer to this question depend upon the nature, if any, of objections to the action? What if there comes to be a generally accepted view of what “really happened,” based on leaks and the like, but still no official account or acknowledgement, let alone adjudication?]
Thanks in advance.