Israel and self-defense: Dealing militarily with Syria 'spillovers'

Analysis: What are Israel's legal options in the current situation on the Syrian border?

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Prof. Louis René Beres,

Louis René Beres
Louis René Beres
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Special to Israel National News

Again, for conspicuous reasons of national self-defense, Israel has been forced to fire upon Syrian military positions. The immediate cause of this latest reaction was another "spillover" to the northern Golan Heights from Syria's civil war. In these engagements, typical target sets for Israel have been pro-terrorist convoys inside Syria, often transporting anti-aircraft ordnance or other advanced weapons to Hezbollah operatives in Lebanon. 

Such worrisome weapons have included SA-17anti-aircraft missiles, Russian-arms that could sometime enable Hezbollah to shoot down Israel's civilian aircraft, its military jets and helicopters, and even its drones.

Geo-strategic context matters a great deal. Hezbollah operates within a starkly anarchic Syria, seeking, among other things, to open up viable new insurgent fronts against Israel. Together with readily recognizable sponsors from Iran's Islamic Revolutionary Guard Corps (IRGC), these seemingly faith-driven Shiite insurgents are increasingly able to fire upon Israel from an operations headquarters in southern Syria. On occasion, the Israel Air Force has targeted both Hezbollah terrorists and IRGC fighters near Quneitra, close along the Israeli border.

Significantly, there are some meaningful ironies here. Most problematic, perhaps, obligatory expressions of Israeli national self-defense could simultaneously enlarge the power of ISIS and certain other Sunni militias. For Israel, to be sure, difficult strategic and tactical choices will continue to present themselves.

Thus far, Israel's actions have remained consistent with pertinent international law. In specifically legal terms, Israel's carefully measured and discriminate use of force against Hezbollah terrorists and related assets in Syria has strictly conformed to all applicable rules concerning distinction, proportionality, and military necessity. Although Tehran and Damascus continue to identify Israel's defensive actions as "aggression," such reactions are indispensable, and are also plainly supported, inter alia, at Article 51 of the United Nations Charter.

International law is never a suicide pact. In essence, under all peremptory or immutably basic law, Israel has a primary and incontestable prerogative to survive. Indeed, jurisprudentially at least, nothing could conceivably be less controversial.

The critical legal issues are not complicated.  By allowing its territory to be used as a source of  Hezbollah terrorist weapons against Israel, and as a formidable new base for anti-Israeli terrorist operations, Syria has ipso facto placed itself in violation of the U.N. Charter, and of far wider norms of international law. And because these norms must ultimately be protected and preserved by individual affected states (the state of nations is still in the "state of nature"), Israel has every right to respond unilaterally to Syrian-inflicted harms.

Because Damascus, at its own insistence, continues in a formal condition of belligerency with Israel ( that is, in a legal "state of war"), any charge of "Israeli aggression" by Syria or Iran would make no legal sense.

There is something else. Syria has become an unambiguously failed state. But as Israeli Prime Minister Benjamin Netanyahu correctly points out, Bashar al Assad remains personally and legally responsible for any "spillover violence."

In law, being transformed into a failed state in no way constitutes a permissible excuse for failing to maintain normal and full intra-national control.

In other words, no such retrograde metamorphosis can ever be exculpatory.

For Israel, the expressly legal issues are easy to ascertain and to reaffirm. The relevant codifications are unhidden. To begin, authoritative 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. These prohibitions also form a part of longstanding customary international law, and of what are identified at Article 38 of the Statute of the International Court of Justice as “the general principles of law recognized by civilized nations.”

Following the 1977 Protocols  to the Geneva Conventions of 1949, all insurgent organizations, like all states, are fully obliged to comply with humanitarian international law.

Under all binding 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 expressly concerns the law of armed conflict. Even when it can be determined that a state has a basic right to use force against another, or against another state's proxies, this does not imply, ipso facto, that such use would be in proper agreement with the law of war.

From the start, in defending itself against Hezbollah, Israel’s actions have been consistent with the law of war. 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 very intentionally target noncombatants, Israel has always  been meticulous about striking exclusively hard targets in both Syria and Lebanon.

Unlike Damascus, which even in its currently gravely attenuated form opposes any peaceful settlement with Israel, Jerusalem resorts to defensive force only as a distinctly last resort. As for perplexing Syrian allegations that Israel’s actions have somehow raised the risk of  further escalation, this particular risk could disappear entirely if Damascus and Tehran would effectively cease their lawless support for Hezbollah and other related criminal organizations. In this connection, terrorism, it must never be forgotten, is more than wanton violence. Always, it also represents an expressly codified crime under international law.

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.” Enlarging the specifically post-attack right of self-defense found at Article 51 of the UN Charter, this customary international law doctrine entitles any existentially endangered state to use appropriately measured force preemptively; that is,  whenever the danger posed is “imminent in point of time.”  Facing a potentially endless stream of terrorist rocket attacks upon its vulnerable civilian populations, Israel maintains not only the right, but also the incontestable obligation, to protect its citizens.

Always, Israel must do whatever it can to best safeguard its land and its populations, including, at least in principle, certain longer-term military actions against a still-nuclearizing Iran. Today, however, the operational situation is growing more complicated, and any once-rational decision to invoke anticipatory self-defense in this particular case is plausibly gone. Inevitably, therefore, Jerusalem will have to deal much more routinely with a variety of Iranian/Syrian terrorist proxies, especially Hezbollah, and to do so without constraint by any legal or jurisprudential inhibitions.

International law, Israel must continue to remind the world,  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 twelfth book, Surviving Amid Chaos: Israel's Nuclear Strategy, was published in 2016  by Rowman & Littlefield. http://www.israeldefense.co.il/en/content/surviving-amid-chaos-israels-nuclear-strategy  In December 2016, Professor Beres co-authored a major monograph at Tel Aviv University with General (USA/ret.)  Barry R. McCaffrey, Israel's Nuclear Strategy and America's National Security  https://sectech.tau.ac.il/sites/sectech.tau.ac.il/files/PalmBeachBook.pdf

Louis René  Beres was born in Zürich, Switzerland, at the end of  World War II.