In recent months, tensions between Israel and Hezbollah have risen to their post-2006 zenith. Among other developments, and in response to Israeli strikes against Hezbollah weapons supply routes from Syria, Iran has begun transporting advanced weapons directly to Lebanon and has assisted Hezbollah in constructing underground missile factories within Lebanon used to manufacture and convert unguided missiles into precision-guided ones using Iranian GPS components – a development that Israeli officials have described as a red line. Israel also recently launched Operation Northern Shield to find and destroy tunnels dug by Hezbollah into Israel, causing Lebanese President Michel Aoun to send army reinforcements to the border.
Hezbollah, however, is no ordinary terror group; it is a “hybrid” terrorist organization, involved in a mix of terrorism, social welfare and political participation. Hezbollah’s unique involvement in Lebanon’s affairs presents problematic challenges: if Hezbollah, a “non-state” actor, is actually a part of the Lebanese state, how does this affect Israel’s military options in a future conflict – particularly under the law of self-defense, which Israel invoked as justification for the 2006 Second Lebanon War, and is likely to do so again?
A state’s right to self-defense under international law is derived from Article 51 of the United Nations Charter, which reads, in pertinent part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” The charter’s language is vague, not specifying that an “armed attack” must be committed by a member state, or even what constitutes such an attack. International jurisprudence has attempted to fill in the blanks. In The Republic of Nicaragua v. The United States of America, a 1986 case decided by the International Court of Justice, the Court defined an armed attack as an operation that, “because of its scale and effects, would have been classified as an armed attack rather than a mere frontier incident.” In the same decision, the ICJ established an “effective control” test for recognizing state responsibility for non-state actors, requiring more than the supply of weapons or logistical support on the part of the state. This standard was modified by the International Criminal Tribunal for the Former Yugoslavia in The Prosecutor v. Dusko Tadic, in which the Tribunal found for an overall control standard, which does not require the issuing of specific orders or control of operations by the state.
Under the “control” tests, Hezbollah’s actions – if they constitute more than a “mere frontier incident” and are attributable to Lebanon – would justify an Israeli response under Article 51. Hezbollah’s actions likely meet this standard. Hezbollah has consistently fired barrages of rockets onto Israeli towns and cities, constructed tunnels for purposes of smuggling troops and arms across the border, on which it has further set up intelligence outposts, and has sent reconnaissance drones into Israeli territory. Combined with statements from Hezbollah officials emphasizing that the actions are intended to ensure success in a larger conflict, these moves represent a concerted effort to target Israel, rather than mere occasional escalations.
The question of Lebanese attribution is trickier. In the May 2018 Lebanese parliamentary elections, Hezbollah and its political allies won over half the seats in parliament, while Hezbollah rival Prime Minister Saad Hariri’s party lost 12, prompting Israeli assertions that the outcome reflects the inability to distinguish Hezbollah from the Lebanese state. Furthermore, President Michael Aoun, a Hezbollah ally, has stated that “Hezbollah’s weapons do not contradict the national project… and are, rather, a principal element of Lebanon’s defense.” Similarly, in November, Lebanon’s General Security Director appeared to praise Hezbollah’s actions, stating that “Terrorism that terrorizes your enemy… this is not only your right but your duty.” Hezbollah is also set to take control of the Ministry of Public Health, through which it can manipulate casualty totals and manage one of the state’s largest budgets. On the military side, there is growing evidence of cooperation between Hezbollah and the Lebanese Armed Forces (LAF), including Hezbollah using US-supplied armored personnel vehicles in Syria and patrolling the Lebanese border with the LAF, as well as being informed by the LAF about Israel’s tunnel-destruction activities. In response, a senior officer in Israeli Northern Command opined that the “distinction we made between Hezbollah and Lebanon during the Second Lebanon War was a mistake... in the next war we will not make this distinction.”
Given these events, Lebanon could likely be considered to “control” Hezbollah, thereby permitting Israeli self-defense measures. Although the government does not actually control Hezbollah’s decisions, the aforementioned developments and statements by Lebanese officials embracing them indicate a blurring of the lines between the two entities, thereby accepting government responsibility for Hezbollah’s actions.
Hezbollah’s increased grip over Lebanon is reflected in Israel’s policy of attributing Hezbollah’s actions to Lebanon, which marks a departure from the 2006 war. Although Israel held Lebanon accountable at the outset of the war, Israel later backed down from such claims. The Israeli Cabinet issued a statement specifying that Israel was fighting Hezbollah, and Israel focused its strikes on Lebanese military installations used to assist Hezbollah, including radar facilities, a military airfield, and an army barracks. This time around, Israeli officials ranging from Education Minister Naftali Bennett and former Defense Minister Avigdor Lieberman to former Interior Minister Gideon Sa’ar have all advocated for holding Lebanon accountable for Hezbollah’s actions. Given Hezbollah’s increased political role and military capabilities, Israel’s change in tactics is unsurprising. In a future conflict, Israel desires the leeway to strike any targets it deems necessary in order to diminish Hezbollah’s capabilities as quickly as possible, an advantage it did not possess in 2006.
An Israeli response would likely still be permitted even if the “control” tests for state attribution are not satisfied. Recently, a new understanding of the self-defense doctrine, known as the “unable or unwilling” standard, has risen to prominence. Contrary to the “control” tests, this doctrine permits defensive measures against a non-state actor on the territory of and without the consent of a host state if the state is unwilling or unable to respond to the non-state actor. This standard was utilized in the aftermath of the September 11, 2001 attacks. Despite a lack of clarity regarding Taliban “control” over al-Qaeda, the United States invoked Article 51 of the United Nations Charter as justification for commencing military operations against al-Qaeda in Afghanistan, and the international community, from the United Nations to the European Union, recognized the United States’ right to self-defense under the circumstances, essentially relaxing the standard required for the undertaking of self-defense measures.
This precedent can serve as a legal basis for Israeli defensives measures under Article 51. Lebanon is clearly unwilling to address the threat posed by Hezbollah, as evidenced by Hezbollah’s growing power and in general by Lebanon permitting Hezbollah to use its territory as a base despite UN calls to remove Hezbollah forces from its territory. Instead, Hezbollah maintains de facto control of Southern Lebanon, converting villages into intelligence and monitoring outposts. Furthermore, Israel could point to Lebanon’s inability to fulfill its obligations under UN Security Council Resolution 1701, which include the disarmament of all militant groups and the removal of all non-UNIFIL forces south of the Litani River, violated by the construction of the border tunnels, as evidence that Lebanon is unable to deal with the organization. Israel would thus be justified in conducting defensive measures against Lebanon and Hezbollah, although the scale of its response might be more limited.
A second conflict between Israel and Hezbollah is likely to have devastating consequences. For Israel, this means garnering international support for removing a distinction between Hezbollah and Lebanon prior to the breakout of hostilities. Indeed, this was a likely goal of publicizing Lebanon’s inability to maintain control of its southern border as part of Operation Northern Shield. It further means continuing its precision strikes on Iranian weapons transfers and factories to reduce Hezbollah’s capabilities. Moreover, the United States, which has historically sought to separate the Lebanese government from Hezbollah, should monitor Hezbollah’s increasing power over Lebanon and adjust its policy accordingly, including by conditioning aid to Lebanon on the cessation of LAF cooperation with Hezbollah and increasing funding for Israeli defensive measures, including the Iron Dome, David’s Sling, and anti-tunnel technology.The writer is a graduate student at the University of Southern California Gould School of Law.
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