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The legality of Israel’s use of force
By LOUIS RENE BERES
02/10/2013
Israel has not only the right, but also the distinct obligation, to protect its citizens.
 
At the end of January, 2013, although never officially confirmed, Israel launched rare airstrikes inside Syria. The core target was a truck convoy carrying anti-aircraft weapons to Hezbollah terrorists in Lebanon. More than likely, these advanced weapons included SA-17 anti-aircraft missiles, Russian arms that could readily enable Hezbollah to shoot down Israeli jets, helicopters and drones.

International law is not a suicide pact. Israel’s very carefully measured and discriminate use of force against terrorist-bound military targets in Syria was fully consistent with pertinent legal rules.

Although Damascus contends that Israel’s moves were somehow an instance of “aggression,” such acts of individual self-defense are plainly protected, inter alia, by Article 51 of the United Nations Charter.

By allowing its territory to be used as a source of weapons for Hezbollah to use against Israel, it is Syria that is in flagrant violation of the Charter. Indeed, because Syria, solely at its own insistence, remains in a formal state of war with Israel, the charge of “Israeli aggression” can make no jurisprudential sense.

In more narrowly strategic terms, Israel has especially good reason to fear the disposition of Syria’s large inventory of chemical weapons.

These weapons could eventually be transferred to Hezbollah either by Syrian President Bashar Assad himself, or ultimately by elements of his jihadist foes within the Free Syrian Army.

Let’s be even more specific. Precise prohibitions on pro-terrorist behavior by a state can be found in Article 3(f) and 3(g) of the 1974 General Assembly Definition of Aggression. Additionally, these prohibitions are a part of longstanding customary international law, and what are identified in the authoritative Statute of the International Court of Justice as “the general principles of law recognized by civilized nations.”

The Obama administration, while certainly stopping far short of any open condemnation of Israel’s military actions in Syria, may still view these indispensable actions with little real enthusiasm.

Here, although Washington’s lukewarm position might be understood in starkly geopolitical terms, it is still oddly reticent in view of America’s own ongoing military policies in Iraq and Afghanistan. It is difficult to imagine a United States that has launched major defensive wars in these two countries, in order to protect itself from terrorism, being simultaneously unenthusiastic about Israel’s much more modest defensive tactics.

HISTORY IMPACTS law. Syria has maintained a formal state of war with Israel from the Jewish state’s UN-created beginnings in May, 1948. Unlike Egypt and Jordan, which eventually supplanted the 1949 armistice agreements with full peace treaties, Syria steadfastly insists upon belligerency with Israel.

Under binding international law, an armistice agreement is not a war-terminating arrangement. It is merely a pledge to temporarily cease hostilities in a protracted or extended conflict.

In his formal statements to the UN Security Council, Syria’s permanent representative (the representative of a government no longer legitimate, and about to crumble into final chaos) has with assurance cited the 1974 Disengagement of Forces Agreement with Israel. Yet, Syria could not possibly have been in compliance with this agreement while allowing Hezbollah terrorists to use its territory for mobilizing advanced weapons against Israel. Nor are there any provisions of this 1974 pact that could allow Syria to unilaterally disavow its always-overriding obligations expressed in Article 3 (f)(g) of the General Assembly Definition of Aggression.

According to the Vienna Convention on the Law of Treaties, certain legal obligations are sufficiently fundamental to be called “peremptory.” These rules are so utterly primary and irreversible that they can never be broken.

This is true even if a new treaty is created expressly to void them.

It’s not complicated. The rule in Article 3 of the General Assembly Definition of Aggression concerning state assistance to terrorists permits no exceptions. It is a manifestly peremptory obligation. Further augmenting this broad prohibition, any planned Syrian transfer of arms to Hezbollah represents a clear violation of UN Security Council Resolution 1701, in particular paragraph 15. This key paragraph was adopted as a Chapter VII injunction, and is therefore binding on all states.

From the standpoint of international law, every use of force by states must be judged twice: once with regard to the justness of the cause, and once with regard to the justness of the means. This second standard concerns humanitarian international law; namely, in this case, the question: Were the Israeli means of military force directed against terrorist-bound weapons in Syria aptly discriminate, proportionate and “militarily necessary”? Even when it can be determined that a state does have a basic right to use force against another, this judgment does not automatically imply that such use would be consistent with the law of armed conflict.

Even when the ends of defensive force are determinedly lawful, they still cannot necessarily justify the means.

In this recent matter of defending against Hezbollah, Israel’s actions were fully consistent with humanitarian international law. Unlike the Shi’ite terrorist militias in Lebanon, and also unlike Syrian-supported Hamas and Islamic Jihad Sunni forces, who intentionally target noncombatants, Israel was meticulous in striking a patently hard target in Syria. Significantly, the strike created a minimum of collateral damage. A total of two Syrian workers were killed on the ground.

Unlike Damascus, which still opposes any sort of peaceful settlement to the Syrian-created conflict with Israel, Jerusalem continues to resort to the defensive use of force only as a last resort. As for insistently disingenuous Syrian allegations that Israel’s recent military action raised the risk of serious “escalation,” this risk would disappear altogether if Damascus were willing to cease its relentless support for Hezbollah and other terrorists.

One final point of law. The permissibility of Israel’s use of force against terrorist-bound weapons in Syria is supported by the universal right of “anticipatory self-defense.” Augmenting the post-attack right of selfdefense found at Article 51 of the UN Charter, this customary international law doctrine entitles an endangered state to use appropriate force preemptively, whenever the danger posed is “imminent in point of time.”

Now facing an almost endless stream of rocket attacks upon its most fragile populations, Israel has not only the right, but also the distinct obligation, to protect its citizens.

In the final analysis, the basis of any government’s lawful authority must be the assurance of protection for its citizens. While Damascus remains feverishly engaged in imposing egregious harms upon its own civilian populations, Jerusalem is bent upon defending all Israelis from Syrian-supported war and terror.

The writer (PhD, Princeton, 1971) is the author of many books and articles dealing with international law. Born in Zürich, Switzerland, on August 31, 1945, he is professor of political science and international law at Purdue University.

He is a frequent contributor to The Jerusalem Post.
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