The legality of Israel’s use of force
Israel has not only the right, but also the distinct obligation, to protect its citizens.
MAJ. ITAMAR ABU (right) commands TA Iron Dome Photo: IDF Spokesman
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
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
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.
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
In more narrowly strategic terms, Israel has
especially good reason to fear the disposition of Syria’s large inventory of
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
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.
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.
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
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
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
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
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
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.