Analysis: Can Israel legally justify a preemptive air strike on weapons transfers?

While the IDF has a history of preemptive strikes, recent reports are of a strike on defensive missiles en route to Hezbollah, not WMDs.

By YONAH JEREMY BOB
IAF A-4, F-16 jets at Hatzerim_370 (photo credit: Reuters/Amir Cohen)
IAF A-4, F-16 jets at Hatzerim_370
(photo credit: Reuters/Amir Cohen)
OC Northern Command Maj. Gen. Noam Tibon on Thursday told The Jerusalem Post Diplomatic Conference that in light of Syrian attempts to smuggle weapons to Hezbollah, the IDF “must do what we can do to prevent it.”
Asked on the sidelines if the situation he described could justify foreign news reports of IDF attacks on convoys that were making such weapons transfers, he said he could not speak on that issue, although he told The Jerusalem Post that the number of rockets in Hezbollah’s possession could press Israel into new levels of aggressiveness.
There are other circumstances where such vague statements could be interpreted in multiple ways to refer potentially to economic sanctions or general diplomatic efforts.
But Israel has no effective levers to influence or stop those weapons transfers other than military action by the air force, and the IDF has a history of preemptive strikes in foreign territories when it was believed necessary.
In that light, even without any official confirmation (or denial) that the IDF is undertaking any preemptive strikes, it is worth asking what would be the legal basis for doing so. This is particularly true since Tibon was describing the transfer not of weapons of mass destruction or even offensive weapons, but surface-to-air missiles (SAMs) designed to repel encroachment by foreign aircraft. The strikes do not fit into a conventional international-law analysis or even in the same category as some of Israel’s prior preemptive strikes.
Conventionally, the largest camps on use of military force say that it is warranted – only after an armed attack (camp one) or preempting an imminent attack.
The scenario Tibon described, which he said the IDF “must prevent,” did not describe either an armed attack or an imminent attacked, but rather a SAMs transfer which at some distant point in the future could be used.
The IDF has preemptively struck in the past against targets that could only be used in the distant future, but in connection with weapons of mass destruction, it is quite different than hitting weapons used primarily for defensive purposes.
How could Israel justify such an attack? Clearly, the military strategic view is that allowing Hezbollah to receive advanced SAMs could blunt Israel’s air superiority advantage in defending itself.
But can such strategy fit into any international law paradigm? Under the current framework, such a view would probably find few defenders outside of Israel when it comes to international law.
On the other hand, in the several alleged IDF attacks reported by foreign sources, there were no reports of significant casualties nor any significant cries from human rights groups.
As long as there are few civilian casualties and Israel’s alleged attacks remain covert and unconfirmed, Israel is likely to succeed in avoiding heavy criticism.
But if Israel had to defend the alleged attacks in the future, its attempt would likely refer to other developments which Tibon had noted in his talk.
Tibon pointed to intelligence reports that Hezbollah “has acquired 100,000 additional rockets” since the 2006 Lebanon War, “more rockets per inch than any other place on earth.”
He said that Hezbollah weapons are systematically hidden in people’s homes, and that fighters who join Hezbollah are even given houses with the understanding that one floor in a multi-story building would be used to hide weapons.
The idea is that Hezbollah could unleash a massive strike across Israel such as had never been seen before, without needing a single troop to set foot inside Israeli territory and without Israel necessarily finding a way – if it had any warning at all – to stop most of the rockets in the “imminent” period, before they were used. And with the advanced SAMs deterring an aerial assault, the IDF might be limited in mustering a quick and effective counterstrike.
Even if Israel went one step earlier in the process and tried to strike the SAMs and rockets before they were used, by striking them where they were hidden, Hezbollah’s taking the idea of human shields to a whole new level by systematically hiding the weapons in houses in civilian areas would lead to unavoidable and significant civilian casualties.
In that light, if Israel wants any chance at blocking or striking the SAMs (maintaining its ability to counterstrike against rockets) and rockets, and at limiting civilian casualties, it would have to be done at the earlier point, when they are first being transferred to Hezbollah.
It is unlikely that this case would satisfy all of Israel’s critics, but if it plans to try to continue stopping Syrian- Hezbollah weapons transfers, it may eventually need to make the case publicly.