International law is not a suicide pact. Israel’s distinctly measured use of force against terrorist bases in Lebanon is entirely consistent with international law. Although some would mistakenly contend that Israel’s essential actions express “aggression,” the incontestable right of individual self-defense is plainly codified in Article 51 of the United Nations Charter. Indeed, by persistently allowing its territory to be used as a base of terrorist operations against Israel, it is Lebanon that is in flagrant violation of the charter.
Very precise prohibitions of such pro-terrorist behavior by a state can be found at Article 3 (f)(g) of the 1974 General Assembly Definition of Aggression. These prohibitions are also part of long-standing customary international law and what are called in the authoritative Statute Of The International Court Of Justice “the general principles of law recognized by civilized nations.”
The Bush administration, while openly supporting Israel’s defensive actions in Lebanon, still views such force with little real enthusiasm. While Washington’s practical subtext here can be readily understood in geopolitical terms, it is ideologically odd in view of current American policies in Iraq and Afghanistan. It is difficult to imagine the United States, now fighting major counter-terrorism wars in two other countries, finding any conceivable fault with the far less substantial Israeli action. It might also be noted that Israel is less than half the size of San Bernardino County, California, and that its proportionate fatalities from terror attacks are always vastly greater than our own.
Lebanon has been formally at war with Israel from the Jewish State’s imperiled beginnings in May 1948. Unlike Egypt and Jordan, which eventually supplanted the 1949 armistice agreements with a full peace treaty, Lebanon – like Syria – still exists in a formal condition of belligerency with Israel. Lebanon’s own armistice agreement with Israel was signed on March 23, 1949. Under international law, an armistice agreement is not an arrangement of war termination. Rather, it is merely a pledge to cease hostilities temporarily in an otherwise ongoing conflict.
Ironically, this anti-peace posture embraced by Lebanon logically contradicts all current allegations about Israeli “aggression.” Jurisprudentially, it is not possible to suffer aggression from a state with which you are already at war. To be sure, this legal point is not lost upon the UN Security Council, but it is a point that will almost certainly be overlooked. Similarly, the Secretary-General, who seems determinedly adamant about being evenhanded in this matter, has never done anything to halt Hizbullah terrorism against Israeli civilians – precisely the sort of terrorism that gives rise to Israel’s indispensable act of self-defense against terror targets in south Lebanon.
Lebanon, in the fashion of all other states, can not choose to simply disavow its overriding obligations at Article 3 (f)(g) of the 1974 General Assembly Definition of Aggression, or to disregard its corollary obligations at the earlier UN General Assembly’s Declaration On Principles Of International Law Concerning Friendly Relations And Cooperation Among States In Accordance With The Charter Of The United Nations. This 1970 Declaration requires, among other things, that “no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist, or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.”
According to the Vienna Convention on the Law of Treaties, certain legal obligations are sufficiently fundamental so to be called “peremptory.” These rules are so utterly primary and irreversible that they can never be broken; indeed, even if a new treaty were created expressly to void them. The rule at Article 3 of the General Assembly Definition of Aggression and at the Declaration on Principles concerning state assistance to terrorists positively permits no exceptions. It is a manifestly peremptory obligation.
From the standpoint of international law, every use of force by states must always be judged twice, once with regard to the justness of the cause and once with regard to the justness of the means. This second criterion concerns Humanitarian International Law – namely, are the Israeli means of military force against terrorist bases aptly discriminate or proportionate and are they adequately constrained by “military necessity”? Even when it can be determined that a state has the right to use force against another, this does not imply that such use can violate the established law of armed conflict. Even when the ends of violence are determinedly lawful, they still can never justify the means.
Israel’s actions in Lebanon are fully consistent with humanitarian international law. Jerusalem continues to resort to the use of force only as a very last resort. As for the disingenuous allegations by Arab states at the UN that Israel’s action raises the risk of serious “escalation,” this risk would disappear altogether if Lebanon and Syria were to finally cease their continuing and active support for Hamas, Islamic Jihad and Hizbullah.
Of course Syria and Iran both goad and sustain Hizbullah in its relentless terror attacks upon Israel from Lebanon. Most importantly, however, Iran is using the current crisis in Lebanon to deflect world attention from its still accelerating process of nuclearization. Unless this sinister process is impeded soon by appropriate preemptive actions, Israel will quickly face an authentically existential crisis beside which the present hostilities would appear manifestly trivial.
The essential lawfulness of Israel’s use of force against terrorist bases in Lebanon is supported also by the universal right of “anticipatory self-defense”. Augmenting the post-attack right of self-defense found at Article 51 of the UN Charter, this international law doctrine entitles an endangered state to use appropriate force preemptively when the danger posed is “imminent in point of time”. Facing an endless stream of terror attacks upon its most fragile populations, Israel now has not only the right but the distinct obligation to protect its citizens from incessant harms.
This position is not only consistent with codified and customary international law, but also with The National Security Strategy Of The United States, an official statement of policy by the Bush Administration first issued on September 20, 2002 that expands this country’s right to act preemptively against terrorism. Itself drawn from international law, the open American policy asserts that, “Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents.” The doctrine proceeds: “We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.”
This “adaptation” means nothing less than striking first against terrorist bases wherever an imminent threat to the United States is presumed to be unacceptable. The State of Israel, a good deal smaller and more vulnerable than the United States of America, assuredly has at least a comparable right.
International law is not a suicide pact.
© Copyright, The Jewish Press, 2006. All rights reserved.
LOUIS RENE BERES (Ph.D., Princeton, 1971) is the author of many books and articles dealing with international law. He is strategic and military affairs columnist for The Jewish Press.