PROFESSOR BERES AT HARVARD: Are Israel's Actions Legal?
PROFESSOR BERES AT HARVARD: Are Israel's Actions Legal?

Published August 26, 2013 in the Harvard Law School National Security Journal, Harvard Law School, Harvard University. Posted here by permission of the writer, a frequent contributor to Arutz Sheva.

Hezbollah, the Shiite terror organization based in Lebanon, has repeatedly sought to justify its armed pro-regime intervention in Syria. Most insistently, it has been arguing that Israel and the United States initially instigated the rebellion against Bashar al-Assad. To be sure, Hezbollah’s leader, Hassan Nasrallah, is factually incorrect in this particular allegation. More importantly, however, the allegation is not jurisprudentially significant.

Because the Assad tyranny in Syria is responsible for substantially egregious and unpunished crimes against its own citizens—including, most recently, a series of reported chemical weapons attacks—any such rebellion could still be properly defended under international law. Here, the uprising would be described as a permissible expression of “humanitarian intervention,” or, as it is sometimes called in more currently fashionable legal language, “the responsibility to protect.”

Understandably, Mr. Nasrallah in Lebanon is worried about a rising tide of attacks on Shiites in Iraq and Pakistan. Also, as he is plainly aware, the Syrian rebellion is now a mostly Sunni movement. Mr. Assad, an Alawite, is a natural ally of Shiite Iran. The Alawite sect, which dominates Assad’s own security forces, is a direct offshoot of Shiite Islam.

All of this has tangible security implications not only for Syria and Lebanon, but also for neighboring Israel. The precise geo-strategic axes of conflict are complex, nuanced, and inter-penetrating; that is, there are substantially overlapping interests between various state and non-state parties to the regional conflict, an overlap that is sometimes improbable, or even paradoxical.  Nonetheless, the resultant defense problem for Jerusalem is straightforward and unambiguous: Syria remains a country that may harbor weapons bound for Hezbollah in Lebanon (including chemical arms from Damascus, and long-range missiles from Iran), and, increasingly, Hezbollah fighters themselves.

Between Syria’s Assad and Hezbollah, the core relationship is mutually supportive or reciprocal. It is a linkage, therefore, in which the regime in Damascus, for its part, remains committed to assisting Hezbollah operations in Lebanon. Understanding this condition of reciprocity between its pertinent adversaries, the Israel Air Force (IAF) launched limited strikes in Syria in early May, 2013, against stockpiles of weapons headed for Hezbollah in Lebanon.  Some of these weapons, Iranian missiles known as Fatah-110s, had been sent to Syria by Iran.   Much earlier, at the end of January, 2012, Israel launched similar airstrikes inside Syria.

Then, the primary target was a truck convoy carrying anti-aircraft weapons to Hezbollah terrorists in Lebanon. These weapons were authoritatively thought to include Russian SA-17 missiles, advanced arms that could have enabled Hezbollah to shoot down Israeli jets, helicopters, and drones.

International law is not a suicide pact. Israel’s use of force against terrorist-bound weapons in Syria, always very carefully measured and discriminate, has remained fully consistent with pertinent legal rules. Although Damascus and its allies contend that Israel’s moves were instances of “aggression,” such moves, as acts of individual self-defense, were protected, inter alia, at Article 51 of the United Nations Charter.

By allowing its territory to be used as a source of Hezbollah terrorist weapons and manpower against Israel, Syria (and sometimes also Iran, as an occasional weapons supplier) has been in violation of the Charter.

Further, law does not function in a vacuum. History impacts law, including, of course, international law. Syria has maintained a formal condition of war with Israel from the Jewish State’s UN-created beginnings in May, 1948. Because Syria, solely at its own insistence, remains in a formal condition of war with Israel, no charge of “Israeli aggression” can make any meaningful jurisprudential sense. In more narrowly strategic terms, Israel has good and ongoing reasons to fear (especially) the disposition of Syria’s still-expansive inventory of chemical weapons.

Eventually, these weapons could be transferred to Hezbollah by Syrian President Bashar Assad, or, instead, fall more-or-less into the hands of certain Hezbollah/Assad foes fighting within Sunni-led factions of the warring opposition. Ironically, of course, by its indispensable self-defense actions against Hezbollah, and also the Alawite regime in Damascus, Israel is effectively fighting on the same side in Syria as some of its otherwise most recalcitrant Islamist enemies.

But let us return to more directly relevant considerations of law.

Precise prohibitions of pro-terrorist behavior by a state can be found at Article 3(f) and 3(g) of the General Assembly Definition of Aggression (1974). These prohibitions are a part of longstanding customary international law, and of “the general principles of law recognized by civilized nations,” as they are authoritatively identified in the Statute of the International Court of Justice (1945).

Under binding international law, an armistice agreement is not a war-terminating arrangement. Always, it is merely a pledge temporarily to cease hostilities, within a protracted or extended conflict.

In his several formal statements to the UN Security Council, Syria’s permanent representative (the representative of a government no longer legitimate, and still crumbling into chaos) has cited to the Disengagement of Forces Agreement with Israel to argue that Israel’s “occupation” of the “Syrian Golan Heights” must end. On July 24, 2013, Syria’s Permanent Representative to the UN, Bashar al-Jaafari, underscored what he had called “the continuous suffering of the Syrian citizens under the Israeli occupation in the occupied Syrian Golan in light of the absence of an international will to end this occupation according to the relevant UN resolutions.” Yet Syria could not possibly be in compliance with this agreement while allowing Hezbollah terrorists to use its territory for mobilizing advanced weapons and warfare against Israel. Nor are there any provisions of this 1974 pact that could allow Syria to disavow unilaterally its always-overriding obligations expressed at Article 3(f)‑(g) of the General Assembly Definition of Aggression.

According to the Vienna Convention on the Law of Treaties (1969), certain legal obligations are sufficiently fundamental to be called “peremptory.” These jus cogens rules are utterly primary and irreversible; they can never be broken. This is true, moreover, even if a new treaty is created expressly to void them.

For anyone seeking to assess the legality of Israel’s self-defense actions against Syria, it is not really all that complicated. The rule at Article 3 of the General Assembly Definition of Aggression concerning state assistance to terrorists permits no exceptions. It displays, therefore, a manifestly peremptory obligation.

Further augmenting this broad prohibition, any planned Syrian transfer of arms to Hezbollah represents a clear violation of UN Security Council Resolution 1701, in particular paragraph 15. UN S.C. Res. 1701, adopted on 11 August, 2006, concerns legal settlement of the 2006 Israel-Lebanon conflict. It calls, inter alia, for a full cessation of hostilities, and for a ceasefire, that began on 14 August, 2006. The specific details of paragraph 15 are as follows:

 The Security Council:

“Decides further that all States shall take the necessary measures to prevent, by their nationals or from their territories or using their flag vessels or aircraft:

‘(a) The sale or supply to any entity or individual in Lebanon of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, whether or not originating in their territories; and

‘(b) The provision to any entity or individual in Lebanon of any technical training or assistance related to the provision, manufacture, maintenance or use of the items listed in subparagraph (a) above;

except that these prohibitions shall not apply to arms, related material, training or assistance authorized by the Government of Lebanon or by UNIFIL as authorized in paragraph 11[.]“

This key paragraph was adopted as a Chapter VII injunction, and is therefore binding on all states.

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 (jus ad bellum), and once with regard to the justness of the means (jus in bello). This second standard of judgment concerns compliance with humanitarian international law. In this particular case, therefore, the question becomes: Were the Israeli means of military force directed against terrorist-bound weapons in Syria, aptly discriminate, proportionate, and “militarily necessary?”

Even when it can be determined that a state does have a basic right to use force against another state, this judgment does not automatically imply that such use would be consistent with the law of armed conflict.

Even when the ends of defensive force are ascertainably lawful, they cannot justify the means.

However, in defending against Hezbollah, Israel’s actions have been fully consistent with humanitarian international law. Unlike the Shiite terrorist militias in Lebanon, and also unlike other Syrian-supported Palestinian forces who intentionally target noncombatants, Israel has been measured and precise in striking only patently hard targets in Syria.

Unlike Damascus, which still opposes any sort of peaceful settlement to the Syrian-created armed conflict with Israel, Jerusalem resorts to the use of defensive force only as a last resort. As for recurrently disingenuous Syrian allegations that Israel’s military actions against Syria raise a corollary risk of  “escalation,” this risk would disappear if Damascus were willing to cease its unhidden support for Hezbollah and other terrorists. Of special concern here are assorted Palestinian groups, especially the Popular Front for the Liberation of Palestine (PFLP), and the Popular Front for the Liberation of Palestine‑General Command (PFLP-GC). The military wing of the PFLP is called the Abu Ali Mustapha Brigades. The paramilitary wing of the PFLP-GC is the Jihad Jibril Brigades. In 2011, at the start of the Syrian civil war, the PFLP-GC was an immediate and staunch supporter of al-Assad’s Ba’ath Party.

Until now, the Obama Administration, while stopping short of any open condemnation of Israel’s military actions in Syria,  has viewed these unavoidable operations with little genuine enthusiasm. Although Washington’s lukewarm position might be understandable in starkly geopolitical terms, it is still oddly reticent in view of America’s own ongoing strategic policies in Iraq and Afghanistan. More specifically, it is difficult to imagine a United States that on the one hand has launched major counter-terrorism defensive wars in these two other countries, but on the other expresses reservations about Israel’s vastly more limited and modest security undertakings. As the U.S. weighs its own options in light of reports of Assad’s chemical attacks against noncombatants, its distance from supporting Israel’s efforts against Assad’s regime may be reduced.

There is one final point of law to be considered. The permissibility of Israel’s use of force against terrorist-bound weapons in Syria is supported by the universal and unassailable right of “anticipatory self-defense.” The right of anticipatory self-defense under international law was established by Hugo Grotius in Book II of The Law of War and Peace (1625). Here, Grotius indicates that self-defense is permissible not only after an attack has already been suffered, but also in advance—”where the deed may be anticipated.” Or as he says later in the same chapter: “It be lawful to kill him who is preparing to kill…” A similar argument is offered by Samuel Pufendorf in his treatise, On the Duty of Man and Citizen According to Natural Law (1672). The customary right of anticipatory self-defense has its modern origins in the Caroline incident, which concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule (a rebellion that elicited sympathy and support in the American border states). Following this event, the serious threat of an armed attack has generally been taken to justify militarily defensive action. See J. Moore, A Digest of International Law 409 (1906).

Today, some scholars maintain that the customary right of anticipatory self-defense expressed by the Caroline has been overridden by specific language in Article 51 of the UN Charter—namely, the literal qualifications contained in the phrase, “…if an armed attack occurs.” This interpretation ignores, however, that international law cannot logically compel a state to wait until it absorbs a devastating or even lethal first strike before acting to protect itself. And the argument against the restrictive view of self-defense is reinforced by the well-documented weakness of the Security Council in undertaking collective security action against a prospective aggressor.

Augmenting the post-attack right of self-defense that is found codified at Article 51 of the UN Charter, this customary international law doctrine entitles any endangered state to use appropriate force preemptively, that is, whenever the danger posed is “imminent in point of time.”  Now, facing potentially devastating rocket attacks upon its most fragile populations, Israel has not only the right, but also the obligation, to protect its citizens from incessant and potentially still-remediable harms.

The need for Israel to practice anticipatory self-defense may be brought into even sharper relief if—in addition to the risks posed by Syria and Hezbollah—one also considers the threats that may be on the horizon from a nuclear Iran. Beyond weapons transfers to Syria, Iran also poses a more direct security threat if any of various possibilities for missile attacks that it could mount were to materialize.

If, for whatever reason, Iran is allowed to acquire nuclear weapons—to “go nuclear,” in the more common military parlance—the potential threat to Israel could not only become more substantial, but also existential. In such altogether conceivable circumstances, Jerusalem would then have to make certain eleventh-hour decisions on another even more formidable enemy object of anticipatory self-defense.

From a strategic rather than jurisprudential perspective, the effective decision to preempt against Iran would need to be made before Iran had managed to become fully operational in its weapons nuclearization. If a fait accompli, an Iranian nuclear capacity would rationally preclude any Israeli expressions of anticipatory self-defense. At that point, the risks to Israel of launching defensive first-strikes would almost certainly outweigh any expected benefits. It follows, in such circumstances, that Israel’s only remaining options would be to strengthen immediately both its indispensable nuclear deterrence posture (essentially, by incrementally ending its traditional policy of deliberate nuclear ambiguity), and its anti-ballistic missile capabilities.

Should Israel be able to mount a defensive first-strike before Iran can expectedly cross a final nuclear weapons threshold, the jurisprudential basis for any such resort to anticipatory self-defense would depend upon verifiably determinable conformance with the landmark decision of The Caroline.  This 1837 customary law doctrine (justifying preemptive self-defense) stipulates that an expected enemy attack must always be “imminent in point of time.” Significantly, however, what would properly constitute an “imminent danger” to Israel in 2013 or 2014 would necessarily be very different from what it would have been in the mid-nineteenth century.

At the time of The Caroline, states did not have to face the threat of a nuclear attack. Today, when such a threat would represent the incontestably core rationale of any actual Israeli resort to anticipatory self-defense against Iran, Jerusalem would have every reasonable right to act militarily at the earliest possible strategic opportunity. Needless to say, of course, this unavoidable expression of self-defense would still need to conform to the corollary and critically limiting rules of humanitarian international law (jus in bello), or the law of armed conflict.

In the final analysis, the core basis of any government’s lawful authority must be a reliable assurance of protection for all its citizens. The steps that Israel has taken to advance national self-defense, both past and future, should be recognized not only as determinably lawful, but also as distinctly law-enforcing. For Israel, Syria and Iran represent two closely intersecting elements of the same basic national security problem. The reported use of chemical weapons by Bashar al-Assad’s regime both reflects an increasingly volatile situation in Syria and adds a new dimension to the gravity of the conflict. With this increasing regional volatility and gravity, and especially in light of Syria’s ongoing unwillingness or incapacity to prevent its territory from being used as a base for terrorist operations against Israel, Jerusalem must continue with preparations to act forcefully in support of its always-peremptory and law-enforcing right of self-defense. Over the next twelve months, Jerusalem will need to decide whether there are any still-remaining self-defense options in these theatres of conflict, and to what extent an imperative exercise of these options would be supported by international law.

Louis René Beres (Ph.D., Princeton, 1971) is the author of many major books and articles dealing with international law. Born in Zürich, Switzerland, on August 31, 1945, he is Professor of Political Science and International Law at Purdue University. Professor Beres was Chair of Project Daniel, which presented its final report, Israel’s Strategic Future, to Prime Minister Ariel Sharon in 2003, and subsequently briefed the report to President George W. Bush and to current Israeli Prime Minister Benjamin Netanyahu.