The StuSie

Israel, Lebanon and Article 51

The actions of Hezbollah on July 12 did not rise to the level of an “armed attack” within the meaning of Article 51 of the United Nations (UN) Charter, and therefore Israel’s right of “self-defense” under that Article was not triggered by that particular occasion in isolation. The factors relevant to this assessment include (1) Hezbollah’s non-State status, (2) the magnitude of the day’s events, (3) the historical interactions between Hezbollah and Israel, and (4) Hezbollah’s relationship with other sovereign States in the region.

I will first consider (1) Hezbollah’s status on the world stage. Despite the fact that the word “State” is noticeably absent from the text of Article 51, there can be little doubt that it concerns itself almost exclusively with the actions of States, and Hezbollah is obviously a non-State actor. The International Court of Justice (ICJ) used this point against Israel in its advisory opinion concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: “Article 51 of the Charter … recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State” (¶ 139). Based on this consideration alone, Hezbollah’s actions cannot trigger self-defense under Article 51 without those actions being imputable to a sovereign state. Whether that is the case is a question to which I will return. However, for the moment it will suffice to establish that Hezbollah, acting without State sponsorship, does not qualify as an actor that can prompt self-defense under Article 51.

I will now address (2), the issue of magnitude. Article 3 of UN General Assembly (GA) Resolution 3314 includes in its list of qualifying acts of aggression “acts of armed force against another State of such gravity as to amount to [an actual armed attack conducted by regular forces], or its substantial involvement therein” (emphasis added). According to the ICJ, this description can be understood to reflect customary international law with respect to what constitutes an armed attack (Case Concerning Military and Paramilitary Activities In and Against Nicaragua, ¶ 195). Thus, it is critical to consider whether Hezbollah’s cross-border raid against Israel on July 12 was on par with an actual armed attack conducted by regular state forces. When considering this occurrence in isolation, it does not. On the morning of July 12, Hezbollah forces attacked two Israeli Humvees patrolling on the Israeli side of the Blue Line near Zar'it. The attack resulted in the deaths of three Israeli Defense Force (IDF) soldiers and in the abduction of two others (CNN.com, July 12, 2006; Posted: 02:27 GMT). The number of personnel involved, the amount of damage that was inflicted, and the duration of the raid all point to something less than an armed attack by regular state forces. This is especially true if Israel itself is used as the yardstick by which the strength of attacks by regular forces is measured.

Considering factor (3), the historical context of the event, cross-border skirmishes are nothing new in the area of the Blue Line. They have been perpetrated by Hezbollah since its inception in 1982. Indeed, Israel’s massive military response to the events of July 12 is also not unique. In July 1993, Israel launched a seven-day military offensive code-named “Operation Accountability” in response to Hezbollah rocket attacks. A similar action code-named “Operation Grapes of Wrath” occurred in 1996, which lasted for 16 days (Human Rights Watch, hrw.org). In 2002, in response to Israel’s “Operation Defensive Shield,” Hezbollah used antitank missiles, mortars, Katyusha rockets, and antiaircraft weapons against northern Israeli settlements on an almost daily basis (The Washington Institute, Peacewatch #376). The engagements have followed a pattern in which Hezbollah picks away at Israel rocket by rocket, until Israel retaliates with overwhelming conventional military might. The offensive launched on July 12 is simply Israel’s latest iteration of this pattern. This has an important implication for the analysis of Israel’s right to self-defense under Article 51: If Hezbollah’s actions up to and including those of July 12 can be aggregated for the purpose of qualifying as an armed attack, then Israel may well have a legal right to self-defense under Article 51.

According to Article 51, self-defense must be triggered by an armed attack which, if not actually carried out by regular state forces, is of equal gravity. Hezbollah’s actions on July 12 did not rise to this level. However, taken in the aggregate, even if only considered since 2002, Hezbollah’s repeated attacks on Northern Israel add up to a considerable threat. Though each border skirmish or rocket attack is individually useless for the purposes of triggering Israel’s Article 51 right to self-defense, together they satisfy the gravity test and qualify as an armed attack. There are strong policy arguments both for and against the use of aggregation in determining whether an armed attack has occurred. Specifically, allowing aggregation would significantly broaden the criteria for armed attack, resulting in more legal self-defense, which is counter to the UN mandate to strictly limit the use of force. Conversely, if aggregation is not allowed, then any actor, whether State or non-State, can confound the international system by using pin-prick attacks spread over time, constantly threatening the peace of their victim-State, but being careful never to cross the threshold of armed attack. This would amount to tacit approval of low-level terrorism, which is also counter to the UN mandate. Assuming, for the sake of argument, that aggregation is a legitimate means where the end is qualifying as an armed attack under Article 51, Israel can satisfy that requirement and thus may legally use self-defense until the Security Council acts. The final question then is: Against whom can that self-defense be legitimately exercised?

I have established that Hezbollah is a non-State actor and that unless their actions are imputable to a State, such actions do not qualify as self-defense under Article 51. In defining acts of aggression, the UNGA included “[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State” (GA Resolution 3314, Article 3(g)). Similarly, the ICJ noted in its opinion on the Wall Case that while Article 51 covers armed attacks imputable to a State actor, “Israel does not claim that the attacks against it are imputable to a foreign State” (¶ 139).

However, the situation under analysis here is different, since Hezbollah’s actions on and before July 12 may well be imputable to a foreign State and thus may prompt a legitimate right to self-defense under Article 51. On July 12, mere hours after Hezbollah’s raid, the Israeli government issued a statement indicting Lebanon as the responsible State: “Israel holds the sovereign government of Lebanon as responsible for the action which emanated from its territory and for the safe return of the abducted soldiers” (Haaretz.com, Posted: 07:38 This was most likely because the political arm of Hezbollah is part of the Lebanese government. There is little evidence, however, that Lebanon has any control over Hezbollah’s paramilitary activities. Moreover, there is no evidence that Lebanon “sent” Hezbollah on July 12. On August 1, in an address to the Washington Institute’s Special Policy Forum, Shimon Peres, Israel’s deputy Prime Minister, noted that “Hizballah is not just attacking Israel, but also the existence of Lebanon as it is currently constituted” (Israel’s War against Hizballah and Its Battle against Hamas, washingtoninstitute.org). If this is true, Lebanon is merely another victim of Hezbollah. In the same speech, Mr. Peres also stated that “Hizballah is … acting as the proxy of Iran” (Id.). The Jewish Virtual Library includes in its history of Hezbollah the statements that “Syria backs Hizballah morally and has also supplied it with money and arms,” and “Hizballah … receives financial aid, training, weapons, and explosives from Iran [which] also contributes political, diplomatic, and organizational aid” (“Hizballah”, JewishVirtualLibrary.org). Finally, in Resolution 1701 the UN Security Council points to the fact that Hezbollah is fueled from sources outside Lebanon. One of the preparatory paragraphs welcomes “the commitment of the government of Lebanon … to extend its authority over its territory, through its own legitimate armed forces” (UNSC Resolution 1701) (emphais added). This indicates that authority over some Lebanese territory is currently exercised by illegitimate foreign armed forces. Operative paragraphs 3, 8, 14 and 15 of the same resolution all address the problem of arms and support provided to Hezbollah by foreign sources. The connections between Iran, Syria and Hezbollah are well documented and seem to constitute “[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State” (GA Resolution 3314, Article 3(g)). Thus Israel’s Article 51 right of self-defense, if triggered by Hezbollah on July 12, would be against Iran and/or Syria. It would not be against Lebanon. 13/07/2006).

In conclusion, if Hezbollah’s actions over the course of the preceding four years can be aggregated for the purposes of constituting an armed attack under Article 51, then Israel’s right to self-defense under that Article was legitimately activated. However, self-defense under Article 51 authorizes strikes only against the responsible State(s), not against third parties. In this case the responsible States are undoubtedly Syria and Iran. Therefore, even if Israel’s right to self-defense was legally initiated on July 12, its subsequent actions were still illegal under Article 51 since they were erroneously directed against Lebanon.

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posted by Der Staubsauger @ 18:01