Striking terror targets in Syria - Israel's rights under int'l law

International law is not a suicide pact.

By LOUIS RENÉ BERES
Aftermath of alleged Israeli attack in Syria (photo credit: ARAB SOCIAL MEDIA)
Aftermath of alleged Israeli attack in Syria
(photo credit: ARAB SOCIAL MEDIA)
On several occasions over the past three years, Israel has had to launch selective airstrikes inside Syria. Generally, the core target sets in these defensive raids have been assorted convoys, carrying anti-aircraft ordnance and other weapons to Hezbollah terrorists in Lebanon. More than once, these advanced weapons have included SA-17 anti-aircraft missiles, Russian-manufactured arms that could have enabled Hezbollah to shoot down Israeli jets (civilian and military), helicopters, and drones.
Now, at the start of 2015, Hezbollah has been operating directly within an increasingly anarchic Syria, aggressively attempting to open up a new terror front against Israel. More precisely, Hezbollah, together with enthusiastic sponsors from Iran's Islamic Revolutionary Guard Corps (IRGC), is actively launching attacks upon Israel from its new center of operations, established in southern Syria. Reciprocally, in a preemptive and punitive response, the Israel Air Force has targeted Hezbollah terrorists and IRGC operatives near Quneitra, along the Israeli border.
Although, understandably, Israel has not assumed any responsibility for these necessary operations, it is nonetheless important to point out their indisputable permissibility under international law.
International law is not a suicide pact. Israel's carefully measured and discriminate use of force against Hezbollah terrorists and related terror targets in Syria is consistent with all pertinent legal rules concerning distinction, proportionality, and military necessity. While Tehran views Israel's military moves as "aggression," such expressions of individual self-defense are plainly protected, inter alia, at Article 51 of the United Nations Charter.
In principle, by allowing its territory to be used as a source of  Hezbollah terrorist weapons against Israel, and as a still-developing base for terrorist operations, Syria is in clear violation of both the Charter, and of wider international law. Moreover, because Syria, solely at its own insistence, remains in a formal condition of war with Israel, any charge of "Israeli aggression" by Damascus or Tehran can make no jurisprudential sense. In more practical terms, however, Syria has already become a failed state, unable to control very large swaths of its own territory. Now, with the Assad regime in control of only Damascus, Aleppo, and the Syrian Mediterranean coast, it makes little authentic legal sense to speak of "Syrian responsibility," or "Syrian violations."
For Israel, the operational and jurisprudential issues are now bewilderingly complex. As an example, by exercising its "peremptory" legal rights of self-defense against Hezbollah, including the customary right known formally as "anticipatory self-defense," Jerusalem may inadvertently be assisting ISIS (IS), the rapidly growing malignancy of Sunni fighters, torturers, and murderers. ISIS (IS), after all, is itself at war with Hezbollah and assorted other Shiite adversaries.
There are two distinct but interrelated aspects to Israel's dilemma. One is military, or narrowly operational. The other is legal, or jurisprudential. From the specifically legal perspective, prohibitions of pro-terrorist behavior  by a state can be found at 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 of what are identified at Article 38 of the authoritative Statute of the International Court of Justice as “the general principles of law recognized by civilized nations.”
The Obama Administration, while stopping short of any open condemnations of Israel’s indispensible military actions within Syria, still seems to view these critically defensive actions with little visible enthusiasm. Although Washington's lukewarm position here might reasonably be understood in starkly geopolitical terms, especially as the US is itself already "at war" with ISIS(IS), it is still oddly reticent in view of America's earlier and ongoing military policies in Iraq and Afghanistan. In essence, it is difficult to imagine  a United States that had launched major defensive wars in these two other countries, in order to protect itself from terrorism, being simultaneously unenthusiastic about Israel's much more modest and much more desperately needed defensive strategies.
History may also be invoked. Syria has maintained a formal condition 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 a full treaty of peace,  Syria steadfastly insists upon legal belligerency with Israel.
Under binding international law, an armistice agreement is never a war-terminating arrangement. Rather, it is merely a codified pledge to temporarily cease hostilities in an otherwise protracted or extended conflict.
In earlier statements to the UN Security Council, Syria's permanent representative (the representative of a government no longer legitimate, and no longer viable) routinely cited the 1974 Disengagement of Forces Agreement with Israel. Yet, Syria could not possibly have been in compliance with this agreement while simultaneously allowing Hezbollah terrorists to use its territory for mobilizing advanced weapons against Israel. Nor are there any provisions of this 1974 pact that could in any way allow Syria to unilaterally disavow its obligations expressed at Article 3 (f)(g) of the General Assembly Definition of Aggression.
According to the 1969 Vienna Convention on the Law of Treaties, certain legal obligations are sufficiently fundamental to be called “peremptory.” These core rules are so utterly primary and irreversible that they can never be permissibly broken. This is the case even if a new treaty is created expressly to void them.
The rule found at Article 3 of the General Assembly Definition of Aggression concerning state assistance to terrorists permits no exceptions. It is, therefore, a manifestly peremptory obligation.
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, sometimes also called the law of armed conflict. Even when it can be determined that a state does have a basic right to use force against another, this does not automatically imply that such use would be consistent with the law of war.
Significantly, in defending against Hezbollah, Israel’s actions have been fully consistent with humanitarian international law. Unlike the Shiite terrorist  militias in Lebanon, now repositioning, in part, to southern Syria, and unlike the Syrian-supported Hamas and Islamic Jihad Sunni forces, who intentionally target noncombatants, Israel has been meticulous about striking patently hard targets in Syria and Lebanon.
Unlike Damascus, which even now -- as it rules increasingly over ashes and ruins -- opposes any peaceful settlement to the conflict with Israel, Jerusalem resorts to defensive force only as a last resort. As for the insistently disingenuous Syrian allegations that Israel’s actions raise the risk of “escalation,” this risk would disappear by definition if only Damascus and Tehran were to cease their joint support for Hezbollah and other terrorists.
Ultimately, the lawfulness of Israel’s use of force against Hezbollah terrorists, and against Hezbollah-bound weapons in Syria, is supported by the inherent right of “anticipatory self-defense.” Augmenting the specifically post-attack right of self-defense 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 a potentially endless stream of terrorist rocket attacks upon its civilian populations, Israel maintains not only the right, but the distinct obligation, to protect its citizens.
International law is not a suicide pact. In political philosophy, classic thinkers such as Thomas Hobbes and Jean Bodin have long claimed that the legitimacy of any government must be contingent upon an assurance of protection. Wherever governments are unable to offer such a basic assurance, they cannot claim to be legitimate.
In an article published on January 23, 2015, by The Jerusalem Post's military reporter Yaakov Lappin, the author expertly explains the belligerent circumstances that now compel certain selective expansions of Israel's defensive operations. With its new base in Syria, at Israel's northeast border, Lappin says Hezbollah maintains far better options of attacking Israel and of drawing Israel's return fire away from Lebanon. The point of such diversion, continues Lappin, would be to protect Hezbollah's "most precious asserts," that is, "...well over 100,000 rockets and missiles that might be saved for a future battle over Iran's nuclear weapons program."
Once again, Israel must do whatever possible to safeguard its land and its populations, including longer-term protections against a nuclearizing Iran. Today, however, the operational situation is already growing more complicated, in part because any deliberate weakening of Hezbollah in Lebanon and Syria by Israel could correspondingly strengthen Israel's assorted Sunni adversaries in the region, most notably ISIS(IS).
Which enemies of Israel are currently and potentially most dangerous? Is there a presumed hierarchy of regional enmity that should now properly correlate IDF operations against Hezbollah and ISIS(IS)? Such questions cannot be avoided, and must soon be answered systematically and capably. In any event, Israel's fundamental legal right to survive remains "peremptory," and beyond legal question.
International law is not a suicide pact.
   
Louis René Beres (Ph.D., Princeton, 1971) is the author of many books and articles dealing with Israel and international law. His tenth book, Israel's Nuclear Strategy: Surviving Amid Chaos, will be published later this year, in the United States. His earlier books include Terrorism and Global Security: The Nuclear Threat (1979); Apocalypse: Nuclear Catastrophe in World Politics (1980); and Security or Armageddon: Israel's Nuclear Strategy (1986). Professor Beres was born in Zürich, Switzerland, on August 31, 1945.  He is Professor of Political Science and International Law at Purdue University.