By David B. Rivkin Jr. and Lee A. Casey, Washington lawyers who served in
the Justice Department under presidents Ronald Reagan and George H.W.
Bush. They are members of the U.N. Sub-Commission on the Promotion and
Protection of Human Rights.
July 26, 2006.
Israel’s operations against Hezbollah in Lebanon and Hamas in Gaza have been
widely condemned in Europe, the Arab world and at the United Nations as
violations of international law. Some of the critics seem to deny that Israel has
any legitimate right to use force. Others, while acknowledging its right to
self-defense, nevertheless regard its exercise in these cases as illegal.
Israel’s alleged offenses include treating mere “terrorist” attacks as an excuse
to attack Lebanon, using disproportionate force, causing excessive civilian
casualties and refusing to contemplate an immediate cease-fire.
In fact, Israel’s conduct has been fully compliant with the applicable norms of
international law.
The primary claim by Israel’s critics is that it used force disproportionately in
response to Hezbollah’s initial attack against Israeli soldiers, eight of whom
were killed and two captured. The underlying assumption appears to be that
Israel should have treated these provocations as terrorist acts and limited its
response accordingly, rather than as justifications for a full-scale attack on
Lebanese territory.
But in determining the existence of a legitimate casus belli , a state is entitled to
consider the entire context of the threat it faces. Hezbollah is not simply a
terrorist gang, like Germany’s Baader-Meinhof or Italy’s Red Brigades.
It is a substantial political and military organization that has more than 12,000
short- and medium-range rockets and that has operated freely on Lebanese
territory for many years, periodically launching attacks against Israel. Its stated
goal is Israel’s destruction, and it is the client of a major regional power — Iran
— whose government appears dedicated to the same goal.
Moreover, although international law requires a state to have a lawful reason to
use force — such as self-defense — it does not mandate that a state limit its
military response to “tit for tat” actions. Once a country has suffered an armed
attack, it is entitled to identify the source of that attack and to eliminate its
adversary’s ability to attack again. Its actions must be consistent with
otherwise applicable international norms, but it is not required to accept a
limited conflict that fails to meet and resolve the danger it faces.
That Lebanon has suffered from Israel’s actions does not change the legal rules
involved. No state has the right to permit a foreign military force to use its
territory to launch attacks against another country. Indeed, every country has
an obligation to control its own territory. Lebanon’s failure (or refusal) to expel
Hezbollah would in and of itself have been a legitimate cause for Israeli military
action.
It was the Taliban’s sheltering of al-Qaeda that was the basis of the U.S.
attack on Afghanistan in 2001. And, although the current Lebanese government
is certainly more democratic than the feudalistic Taliban, democratic credentials
cannot insulate a state from responsibility for controlling its territory.
The specific aspects of Israel’s military operations in Lebanon and Gaza have
also been condemned as being disproportionate and as thereby violating the
laws of war. Although there is some grim humor in the spectacle of Russian
President Vladimir Putin, whose troops have ravaged Chechnya, criticizing Israel
for a “disproportionate” use of force, the claims — including dark warnings from
Louise Arbour, U.N. high commissioner for human rights, about “war crimes”
liability for Israel’s leaders — are without merit.
An army must always eschew deliberate attacks on civilians and consider
whether the military advantage to be gained from an operation is sufficiently
important to justify potential collateral damage to civilians. But this does not
mean that installations and infrastructure, such as airports, bridges and the
power grid, cannot be legally attacked. These are all dual-use targets — having
a civilian character but also clear military value. Indeed, in NATO’s 1999 war
against Serbia, exactly the same set of targets was attacked — with the
agreement and approval of the European governments involved. In the current
conflict, Israel’s primary military purpose in attacking these targets appears to
be to cut Hezbollah’s supply lines, not to punish Lebanon.
Similarly, the occurrence of civilian casualties, or the fact that more Lebanese
civilians have died than Israelis, does not prove that Israel has used
disproportionate force. The law forbids an operation only if the hoped-for
military benefit would be clearly disproportionate to the likely injury to the
civilian population. Proportionality, however, must be calculated in the context
of the entire conflict, and any civilian lives lost must be balanced against civilian
lives saved. Unfortunately, heavy civilian casualties are the inherent and
inevitable result
of the type of asymmetric warfare deliberately waged by Hezbollah and similar
groups. They intentionally operate from civilian areas, both to protect their
military capabilities from attack and to increase civilian deaths, which can then
be trumpeted for propaganda purposes. But the presence of a large civilian
population does not immunize Hezbollah or Hamas forces from attack.
Responsibility for any additional civilian casualties must be attributed to those
groups, not to Israel. The adoption of any other rule would reward and
encourage the illegal behavior of such “unlawful” combatants, which would
simply result in more danger to innocent civilians in the future.
Israel may legally seek victory in Lebanon, even if it requires a combination of
ground and air operations, takes weeks to accomplish and results in civilian
casualties. It is under no obligation to agree to an early cease-fire unless the
terms of that agreement would vindicate its legitimate war aims: the security of
its population from attack.
The legal rights Israel is exercising to defend itself today are the very same legal
rights on which the United States must rely in the war on terrorism. Attempts
to revise the traditional laws of war — moving toward a law-enforcement
paradigm — so that law-abiding states cannot effectively protect their own
populations from attack or even defend their territory from armed incursion are
not humanitarian advances. They simply make the world safer for those who
reject any notion of law in war.
