Many pro-Israel TV pundits are justifying Israel’s relentless bombardment of Lebanon as “self-defense”. For example, Jerry Lewis, senior vice president of the Board of Deputies of British Jews, told the BBC’s Dateline London program on July 23 that Israel was acting in self-defense according to the UN Charter.
On July 12, 2006, a frontier dispute between the Israeli Army and the armed wing of Hezbollah rapidly developed into a full-scale armed conflict, leaving hundreds of civilians (mostly Lebanese) dead. According to Israel, the casus belli was a cross-border attack by Hezbollah which led to the capture of two Israeli soldiers and the deaths of eight others. However according to Hezbollah, Israel initiated the conflict by sending its soldiers into Ayta Al-Sha’b, a Lebanese village just north of the Israeli border.
Israel responded to Hezbollah’s “provocation” by threatening to “turn back the clock in Lebanon by twenty years,” as Israel’s Chief of Staff Dan Halutz put it. In a fortnight, Israeli missiles and shells caused the deaths of approximately 400 people, mostly civilians, many of them children, and displaced 700,000. Nothing has been spared: Ports, bridges, motorways, power stations, whole neighborhoods, mosques, churches, the airport, a lighthouse, hospitals, and people fleeing in their cars.
In 2000, Israel withdrew from southern Lebanon, which it had occupied for 18 years, apart from an area between Syria, Lebanon and Israel called the Shebaa Farms. Israel remains an occupying power in the Farms, East Jerusalem, the West Bank, Gaza and the Syrian Golan Heights. The UN called upon Israel to withdraw from those territories in 1967 by passing Resolution 242. In 1973, it reiterated its demand in a binding UN Security Council resolution that was probably passed under Chapter VII of the UN Charter, judging by the terminology employed in Resolution 338 (during the Cold War, the Security Council refrained from distinguishing Chapter VI and VII resolutions. The former empower the council to address disputes which in its judgment do not threaten international peace, but which, if continued, are likely to endanger international peace. The latter type of resolution permits the council to take legally binding decisions under Article 25, directing member states to impose sanctions or use force to maintain international peace).
In 2004, the Security Council passed resolution 1559, which calls on “all remaining foreign forces to withdraw from Lebanon,” and for “the disbanding and disarmament of all Lebanese and non-Lebanese militias”. Contrary to what some reports in the media have suggested, this is not a Chapter VII resolution as is clear from the text. Less than a year later, Syria promptly withdrew its armed forces after massive American pressure forced it to in the aftermath of the assassination of the former Lebanese Prime Minister Rafik Hariri, which is the subject of a UN inquiry.
Israel has said it requires full implementation of Resolution 1559 (which implicitly calls on Hezbollah to disarm) before it will agree to a cease-fire. However, it is a bit rich for Israel to make this a condition when the Security Council has passed 1,221 resolutions since Resolution 338 in 1973, and 1,317 resolutions since Resolution 242 in 1967 — which Israel has yet to implement.
Like all states, Israel has the right of self-defense. This is not in dispute. The relevant provisions in Article 51 of the UN Charter provide:
“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, until the Security Council has taken measures necessary to maintain international peace and security.”
Some argue that Israel was subject to an armed attack (if one accepts the Israeli version of events) and therefore it has the right of self-defense under the charter. This might appear from a strictly textual analysis of Article 51, without considering the negotiating history of the charter and the context in which it was drafted.
However, it is generally accepted that an “armed attack” must be of sufficient gravity taking into consideration its “scale and effect” to trigger the applicability of Article 51. For instance, whilst the 9/11 attacks would undoubtedly be classified as an armed attack, and were defined as such by the Security Council, it is difficult to see how the capture of two soldiers in disputed circumstances would be so. Writing in the English-language Turkish daily Zaman, Richard Falk, professor of international law at Princeton University, considered that:
“...this outbreak of major two-front violence is not about Israel’s right to defend itself against an enemy that is seriously threatening its territorial integrity or political independence, the only grounds for justifiable war. To treat border incidents, involving a few casualties from rockets and the abduction of a single Israeli soldier by a Gazan militia and two by Hezbollah in south Lebanon, as if it were an occasion of war is a gross distortion of well-accepted international law and state practice. To justify legally a claim of self-defense requires a full-scale armed attack across Israeli borders. If every violent border incident or terrorist provocation were to be so regarded as an act of war, the world would be aflame.”
Indeed, Israel has been subject to cross-border raids by Hezbollah and Palestinian militias in the past. It has not always responded with such overwhelming force, which might lead some to conclude that Israel has wider aims in the region such as eliminating Hezbollah altogether or crippling Lebanon, rather than protecting itself. Israel has gone way beyond the scope of self-defense which is subject to the international humanitarian law principles of distinction (making a difference between civilian and military targets), proportionality and military necessity. Had Israel responded by sending its special forces to snatch two Hezbollah guerrillas as bargaining chips, or negotiating over the release of prisoners (as it has done in the past), or even responding by police action, there would have been little criticism. Ideally, Israel should have asked the Lebanese government to take steps in its own territory to free the captured soldiers before resorting to the use of force, which should always be a measure of last resort. If the Lebanese government then failed to act, Israel would be justified in taking proportionate measures to free its soldiers.
But Israel went way beyond its right of self-defense. By threatening to “turn back the clock in Lebanon by twenty years,” Israel risks being accused of committing an act of aggression, with all that entails — such as being accused of war crimes and crimes against humanity, which involves individual criminal responsibility.
— Victor Kattan is director of Arab Media Watch and visiting fellow at a leading British institute of international law. He can be contacted at [email protected].
