Crossing the thin blue line: an inquiry into Israel' s recourse to self-defense against Hezbollah.

AuthorRuys, Tom

Abstract

The present Article examines the legality of Israel's military intervention in Lebanon in the summer of 2006 from a jus ad bellum perspective. More specifically, it examines whether Israel could lawfully invoke the right of self-defense, taking account of the factual circumstances, the justification given by Israel and the reaction of the international community.

The Article focuses mainly on the controversy regarding the legality of self-defense against attacks by non-state actors. In this regard, it is noted that while the restrictions on this type of self-defense may have been eased in recent years, Israel's intervention should not be considered a new precedent towards a broad right of self-defense against terrorist groups or other types of non-state actors.

TABLE OF CONTENTS

  1. INTRODUCTION II. THE OUTBREAK OF HOSTILITIES AND REACTION OF THE INTERNATIONAL COMMUNITY A. Israel's Self-defense Claim 1. Ratione Materiae 2. Ratione Personae i. State responsibility ii. Harboring, aiding, and abetting iii. Failure to prevent and Draft Article 9 3. Proportionality and Necessity III. CONCLUSION I. INTRODUCTION

    On July 12, 2006, Hezbollah militants attacked an Israeli military patrol, capturing two soldiers and killing three. Israel subsequently invoked the right of self-defense and engaged in military operations to retrieve the captured soldiers while carrying out air strikes against several targets in Lebanon, such as the Rafik Hariri International Airport in Beirut. The incident escalated in the following days, when aerial bombardments by the Israeli Defence Forces (IDF) were answered by a rainstorm of Katyusha rockets targeting Haifa and other cities in northern Israel. As the IDF crossed the Blue Line, the United Nations (U.N.)-monitored border demarcation between the two countries, Israeli troops and Hezbollah militants clashed in the worst fighting in southern Lebanon since 1982. For over a month the world held its breath until, finally, a frail ceasefire was put in place at the order of the U.N. Security Council on August 14, 2006. (1) In all, some 116 Israeli soldiers and 43 Israeli civilians lost their lives between July 12, 2006 and August 14, 2006. On the Lebanese side, some 1,109 people--mostly civilians--were killed, as well as twenty-eight Lebanese soldiers. (2) Scores of people on both sides were injured or forced to flee their homes.

    The dramatic events of July and August 2006 raise important questions of jus ad bellum regarding the legality of self-defense in response to attacks by non-state actors. (3) Chief among these questions is whether state involvement in these attacks is needed to trigger Article 51 of the U.N. Charter, (4) which spells out the right of self-defense and, if so, what degree of state involvement is required. The International Court of Justice (ICJ) has addressed this question in its advisory opinion on the legality of the "Palestinian Wall" (5) and in its judgment in the Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), (6) but it has been notoriously unable to provide a coherent answer to this polemic, to the discontent of some of its judges. Legal scholars are highly divided on the topic, although a growing number of authors have suggested that the legal restrictions on self-defense ought to be eased. (7) States, on the other hand, do not seem to stumble over these thorny questions. Indeed, as they did in response to the 9/11 attacks, many states supported Israel's self-defense claim without further ado, notwithstanding the fact that many were critical of the disproportionate character of Israeli attacks and the heavy loss of civilian life on the Lebanese side.

    Against this background, the present Article assesses the merits of Israel's invocation of Article 51 of the U.N. Charter. Given the fact that the initial attack emanated from Hezbollah and not from the Lebanese government, it is hard to fit Israel's recourse to force into the traditional legal parameters of self-defense. We will therefore not only examine the legality of Israel's actions but also their significance for the development of jus ad bellum, taking into account the reaction of the international community. I start from the widely accepted premise that custom, constituted of state practice and opinio iuris, is crucial for the determination of the scope of the legal prohibition on the use of force. (8) Thus, Israel's state practice in the present case will be tested against the opinio iuris expressed by Israel, Lebanon and numerous other states in the debates of the U.N. Security Council. (9) In the end, while the international community generally affirmed the applicability of the right of self-defense to Israel's actions, I argue that this should not be interpreted as creating a broad legal right to exercise self-defense against attacks by non-state actors. Rather, given the circumstances in Lebanon, Article 9 of the Draft Articles on State Responsibility (Draft Articles) (10) may provide an alternative route to legally justify Israel's recourse to self-defense under Article 51, while leaving in place the need for a certain degree of state involvement in armed attacks. The present analysis does not address the legality of Israel's actions under international humanitarian law, (11) nor does it deal with the parallel military action in the Gaza strip during the same period.

    Part II summarizes the events of July 12, 2006 as well as the responses of Israel, Lebanon and the wider international community. Part III examines whether the conditions for the recourse to self-defense were met and focuses in particular on the question of whether and to what extent "armed attacks" require the involvement of a state to legally justify self-defense under Article 51 of the U.N. Charter. Part IV contains concluding remarks.

  2. THE OUTBREAK OF HOSTILITIES AND REACTION OF THE INTERNATIONAL COMMUNITY

    On the morning of July 12, 2006, Hezbollah fighters attacked an Israeli border patrol between the towns of Zarit and Shtula. (12) Making use of a "dead zone" in the border fence, not visible from any of the IDF outlook posts, they crossed the border and ambushed an Israeli patrol with a combination of pre-positioned explosives and anti-tank missiles. Simultaneously, Hezbollah also launched a diversionary attack, firing Katyusha rockets and mortars at Israeli military positions and border villages. The latter attack wounded five civilians. In the ambush itself, three Israeli soldiers were killed, two were wounded and two were abducted. The IDF responded with artillery fire, air strikes, and a naval bombardment. Moreover, in its first military ground operation in southern Lebanon since the withdrawal of Israeli troops in 2000, the IDF summoned a mission to rescue the captured soldiers and engaged in fierce fighting with Hezbollah gunmen.

    Shortly after the Zarit-Shtula incident, Israeli Prime Minister Ehud Olmert made a statement in which he argued that the Hezbollah attack was "not a terrorist attack, but the action of a sovereign state that attacked Israel for no reason and without provocation." (13) He pointed out that Hezbollah is a member of the Lebanese government, stressing that Lebanon was responsible for this "act of war ... on the sovereign territory ... of the state of Israel" and would bear the consequences of its actions. (14) In accordance with the reporting obligation of Article 51 of the U.N. Charter, Israel submitted a letter to the Security Council, stating that "[r]esponsibility for this belligerent act lies with the Government of Lebanon, from whose territory these acts have been launched into Israel. Responsibility also lies with the Government of the Islamic Republic of Iran and the Syrian Arab Republic, which support and embrace those who carried out this attack." (15) The statement denounced the "ineptitude and inaction" of the Government of Lebanon to exercise its jurisdiction over its own territory, despite calls thereto in several Security Council resolutions. The statement goes on to reiterate that Israel "reserves the right to ... exercise its right of self-defense when an armed attack is launched against a Member of the United Nations." (16) To this end, it would take "appropriate actions to secure the release of the kidnapped soldiers and bring an end to the shelling that terrorize[d] [its] citizens." (17)

    The next day, however, Lebanon called for an urgent meeting of the Security Council to discuss the crisis. (18) Lebanon declared that it was "not aware of the events that occurred and are occurring on the international Lebanese border" and did not endorse them. (19) Lebanon refuted responsibility for the actions of Hezbollah and strongly condemned "the Israeli aggressions that targeted and are targeting the vital and civil Lebanese infrastructure." (20)

    Israel's actions against Lebanon were only discussed in the margin during the Security Council meeting of July 13, 2006, which instead focused on the situation in the Gaza strip at the time (a draft resolution was defeated due to a United States veto). (21) However, the next day the Council did convene to discuss the Israeli-Lebanese situation. (22) During the debate it became clear that most of the fifteen Council members supported Israel's invocation of self-defense in principle--the United States, Japan, the United Kingdom, Denmark, Slovakia, Greece, France, Peru, and Argentina all referred to Israel's right of self-defense--even though they refrained from speaking out on Lebanon's possible responsibility for the Hezbollah attacks. Only China and Qatar identified Israel's response as "armed aggression" against Lebanon. (23) On the other hand, most Council members also showed sympathy for the Lebanese authorities and stressed the need for the Lebanese government to exercise full control over all of its territory. Virtually all Council members expressed concern at the targeting of...

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