Examining Israel's `Right To Defend Itself‎

IDF dances within accepted rules of engagement, says Michael Byers

Jul.   16, 2006 – Two years ago, over lunch, I debated self-defense with the lawyer who advises the Israeli Defense Force.

The lawyer in question is a colonel with a Harvard doctorate; the invitation came while I was a visiting professor at the University of Tel Aviv.

After just a few minutes, my host cut to the chase:

"There have been a number of missile attacks along our northern border," she said. "We're going to respond with air strikes against some Hezbollah installations in southern Lebanon next week. What do you think?"

I was taken aback. Governments don't usually consult foreign academics about their military plans. I struggled for a moment.

"Well, for starters, any act of self-defense has to be necessary and proportionate."

The Israeli officer nodded.

"So," I continued, "in order to stay clearly within international law, you should target only those Hezbollah installations that have been used in the missile attacks."

My host: "That won't prevent future attacks. We're also acting pre-emptively."

"Well, in that case you're still subject to the criteria from the Caroline Case," I said, alluding to a dispute over the destruction, by British forces, of an American steamboat on the Niagara River during the 1837 Upper Canada Rebellion.

"The necessity of self-defense must be, quote `instant, overwhelming, leaving no choice of means, and no moment of deliberation.'"

I look the colonel in the eye, "I'm not sure that your air strikes fit these criteria, since you're not planning on launching them until next week. Where's the imminent threat?"

"It's an ongoing threat. We have to ensure that Hezbollah's capabilities remain at a manageable level."

"Isn't that the job of the Lebanese government?" I asked. "What you're proposing is, after all, an armed intervention within the territory of a sovereign nation-state."

"The Lebanese government can't control Hezbollah," she scoffed, "If it could, we wouldn't be having this conversation."

Although the law of self-defense sometimes permits military action against state sponsors of terrorism, this was a different argument.

"You seem to be suggesting that Lebanon, within its southern territories, amounts to a failed state."

"Precisely," she smiled. "We're not violating international law by targeting Hezbollah installations in southern Lebanon because the writ of the Lebanese government doesn't run that far."

The argument was familiar. During my years of teaching in the United States, students had sometimes argued that the UN charter's prohibition on the use of force against a country's "territorial integrity or political independence" shouldn't extend to those — such as Somalia — without effective governments.

"If that's the case," I said, "your strikes must be limited to Hezbollah targets."

"Why?" She arched an eyebrow.

"If you strike other targets, such as roads or airports, you make it more difficult for the Lebanese government to do its job. At which point your argument becomes self-fulfilling, in that you're helping to create a failed state."

The Israeli nodded, "You're right. Don't worry. We're focused on Hezbollah."

I continued: "Also, you must never target civilians, or facilities such as water-filtration or electrical plants relied upon by civilians."

"Ah, here we disagree!" the colonel exclaimed. "Collateral damage is allowed in situations of military necessity. And dual-use facilities are legitimate targets."

"What constitutes military necessity depends on the relative capabilities of the opposing forces," I countered, "And the dual-use argument is a slippery slope."

"Perhaps," she smiled again.

"There's a second reason you should do everything possible to protect civilians," I continued. "Israel has to work particularly hard to maintain the moral high ground. Your reputation has suffered because of your treatment of the Palestinians."

"We're completely justified in our treatment of the Palestinians," the colonel shot back.

"We can disagree on that," I said, "for today.

"But do me a favor, as someone who wants to sympathize with Israel. If you do launch air strikes, please limit yourself to Hezbollah facilities. Leave civilians — and the Lebanese government — alone."

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. He was a visiting professor at the Buchmann Faculty of Law, University of Tel Aviv, in April 2004.

Source: Toronto Star

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