The United States engages in a one-off attack on a Syrian airbase and within a matter of days predictions of an end to international legal order as we know it are flying left and right. Every Jus Ad Bellum (JAB) scholar is immediately asked to weigh in with yet another legal analysis of the attack for various news outlets. Viewers and readers are reacquainted with the exact wording of Article 2(4) of the United Nations Charter, and historical comparisons to the 1999 NATO Bombing of Yugoslavia immediately follow. Sprinkle in a review of humanitarian intervention discourse to date, and some Responsibility to Protect (R2P) for flavor, and you’ve got yourself just about every single legal analysis that has been written about the US Strike in Syria in the past few weeks.
Just how much ink and how many bytes have been spent on the topic? Just Security published a handful of these essays (by Koh, Lederman, Schmitt and Ford). Ryan Goodman even went a step further, soliciting the opinions of expert lawyers in an effort to map their legal understanding of the strikes. So did Opinio Juris (Heller, Ku, Ohlin, Swaine, and Simons), Lawfare (Wuerth, Reeves, Deeks, Adams, and Bellinger) EJIL: Talk, (Milanovic, O’Meara, and Hakimi) and Chatham House (Saul). Major newspapers and news sites also spent lots of time on the international implications of the US strike. The New York Times tabulated which countries supported and opposed the strike, while the Guardian and Politico wrestled with their international legality, calling on international law professors and lawyers to weigh in.
The Strikes No Lawyer Writes About
But not all strikes garner this much attention. Last week, warehouses around the Damascus airport were bombed in an attack for which Syria is blaming Israel. Now, Israel did not confirm nor deny this strike, but its Minister of Intelligence, Yisrael Katz, in essence acknowledged the attack, confirming in a radio interview that “the incident in Syria completely conforms to Israel’s policy, to act so as to prevent the smuggling of advanced weapons from Syria to Hezbollah in Lebanon by Iran.”
How many scholars do you reckon will write legal analyses of this strike? How many articles and blog posts will be published in the coming days with a thought-provoking review of UN Charter complexities surrounding Israel’s actions in Syria? How many international conferences will run breakout sessions to discuss the implications of this strike? I can make a relatively safe prediction for you: absolutely zero. I base my prediction on the fact that since the Syrian Civil War commenced Israel has engaged in at least 17 of these strikes, and with the exception of one (the Council of Foreign Relations wrote about one from 2013), the blogosphere has remained silent.
Israel’s most recent strikes include an airstrike in January against the al-Mezzeh Military airport, located in a suburb of Damascus. According to one report the target of the attack was a shipment of precision ground-to-ground missiles for Hezbollah. A December 2016 airstrike, also against al-Mezzeh Airport, targeted a weapons depot. The strike killed and injured a number of Hezbollah operatives. According to the Kurdish Website ARA News, the targets of the attack were guided-missiles sites belonging to Hezbollah. A November 2016 attack west of Damascus struck near the town of As’saboura. According to one report, Israel hit an arsenal belonging to the Syrian Army’s Fourth Division, and a convoy of vehicles belonging to the Syrian Army, both of which supplied weapons to Hezbollah. No one was hurt or killed during these attacks.
Other reported attacks go back even further: a January 2013 attack against an arms convoy at a military facility at Jamraya carrying advanced anti-aircraft missiles, an April and May 2013 strikes against arms shipments near Damascus destined to Hezbollah, a July 2013 attack against a Syrian army base near Quneitra, an October 2013 attack on a Syrian missile base near Latakia, a January 2014 attack against a military base in the area of Latakia port, a February 2014 strike against a convoy in border area carrying missiles from Syria to Lebanon, a December 2014 attack on Damascus International Airport, and a January 2015 attack on a Hezbollah force in the Quneitra area where senior Hezbollah leader Jihad Mughinyeh was killed.
Statements by Israeli Officials relating to these strikes are scarce. Defense Secretary Avigdor Lieberman stated in December 2016 that: “We are first and foremost making efforts to maintain the security of our citizens and protect our sovereignty, and trying to prevent the smuggling of sophisticated weapons, military equipment and weapon of mass destruction from Syria to Hizbollah.” In a speech to soldiers on the Syrian border in April 2016, Prime Minister Benjamin Netanyahu similarly confirmed that: “We act when we have to act, including here and across the border, with dozens of strikes, to prevent Hezbollah [from] acquiring tie-breaking weaponry.” Multiple times in the past, including just last week, Syrian officials complained about these aerial strikes, claiming they constituted a violation of their sovereignty and territorial integrity under international law, and that they should be viewed as acts of aggression against the Syrian state.
I am baffled by the lack of scholarly curiosity and stamina to review these repeated strikes with the same rigor that has been applied to the one-off U.S. bombing. This is despite the fact that the Israeli and US strikes share a number of important similarities, not the least of which is the fact that any JAB justification of the Israeli strikes will be based on the same type of legal argumentation that guided the analysis of the US attack. In this article I wish to map out the legal questions that stand at the heart of the Israeli strikes, offer potential legal arguments that Israel might wish to make (were it to ever articulate its position), and point out the weaknesses of these arguments. I hope that this article will serve to push for a broader, more holistic, conversation about the JAB regime, one which doesn’t examine the US case study in isolation.
The International Law Behind the Israeli Strikes in Syria
To begin with, the Israeli case study might be muddied by an argument surrounding the existence of an ongoing armed conflict between Israel and Syria and/or Hezbollah, which would seem to make an analysis under JAB redundant. The last time Israel had engaged in protracted armed violence in Syria and Lebanon had been in 1974 and 2006 respectively. To suggest that an armed conflict is ongoing ever since seems improbable, even under the most liberal interpretation of the way wars end and the termination of the application of international humanitarian law (IHL). The levels of intensity and duration of violence that we maintain as necessary, under Tadić, to trigger a non international armed conflict simply do not exist in the relationship between Israel and Hezbollah. Moreover, to the extent that the Golan Heights are subject to the regulation of the Fourth Geneva Convention (a position which Israel rejects), such cannot justify treating the suburbs of Damascus or the Port of Latakia as being part of a zone of continued international armed conflict between Israel and Syria. In any event, as Lieblich had written for Just Security in the past, one must be “aware of the limited power of the ‘ongoing conflict’ argument for the purpose of jus ad bellum” as it reflects a “conservative view that once a situation of war exists, jus ad bellum ceases to constrain the use of force.” Especially in the context tenuous temporal expansions of armed conflict situations, to rely on IHL to refrain from discussing JAB justifications, is troubling. It is therefore crucial that we try to sketch out a legal analysis of these strikes from the perspective of the law on the use of force.
Anyone who has kept up with the legal analysis of the US strike already knows there are three possible legal arguments being cited to justify the US attack under international law, each with its own significant limitations. Absent an armed attack, or a U.N. Security Council authorization, the US may rely only on (1) the controversial doctrine of humanitarian intervention; (2) on an untested expansion of anticipatory self defense to cover, in some form, strikes against the proliferation and use of chemical, biological, and nuclear weapons; or on the even less plausible claim of (3) a moral, if not legal, right to unilaterally enforce, by military means, either U.N. Security Council Resolutions (such as Resolution 2118 prohibiting Syria from using chemical weapons) or international treaties (namely the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction) in order to deter future violations.
While the Israeli strikes cannot be justified through humanitarian intervention, the two other grounds serve as the only plausible justifications of the Israeli strikes in Syria. Israel may try to argue that it has some moral claim to (as the transfer of arms to Hezbollah violates U.N. Security Council Resolutions 1559, 1680, and 1701, all of which call on disarming and disbanding Hezbollah).
Regardless of whether you agree with the above analysis or find it convincing, the point of the matter is that the Israeli case study poses the same type of a “challenge” to the Charter-based legal order, enshrined in Article 2(4), as the US strike in April. The fact that the Israeli strikes are ongoing and continuous, whereas the US strike was a single attack, only justifies even more legal analysis to be provided surrounding the Israeli practice. The legal complexities, between the US and Israeli case studies, are not identical, but they are also not intrinsically different. In his 2013 analysis of one of the Israeli strikes, Patrick concluded that “Israel’s use of force may be a prudent act of statecraft. Whether it is formally legal is another matter, and doubtless of secondary concern in Jerusalem.” There you have it, another case of “illegal but legitimate” for the books.
The Israeli and US strikes are also comparable from the perspective of their potential political implications. The continued Israeli incursions into Syrian airspace could easily escalate into a war between two states. The fact that an Israeli patriot missile had to be fired against a Syrian drone (which was launched in retaliation for Israel’s strikes) is a recent example of how fragile the security situation is between the two countries.
Moreover, in her Just Security article Jennifer Daskal criticized the fact that the Trump administration did not provide “a public justification beyond an asserted ‘vital national security interest of the United States to prevent and deter the spread and use of chemical weapons’” – coupled with a concern about how the refugee crisis threatens the United States and its allies.” She wrote further, “this is disturbing. Whatever one thinks of both the policy justification for the strike, the law also matters. As does the articulation of that law.”
Well, at least the Trump administration publicly declared that it had launched an attack. The Israeli Government refuses to take even this basic step, relying solely on ‘neither confirm nor deny’ as a preferred method of choice. Israel should too be told that the law matters, as does the articulation of that law. Shouldn’t we demand from Israel the same kind of legal scrutiny and standard for transparency? But far more tragically, shouldn’t we demand that of ourselves, as international legal scholars?
American-Centric Conversation over the Development of JAB
I acknowledge the point made by Reisman and Armstrong that “doctrines of sovereign equality notwithstanding, the actions of a great power may be more generative of law than those of smaller states”. Nonetheless, as any student of public international law knows, the creation and modification of international law, both in the context of treaty law interpretation and customary international law development, requires us to look at “subsequent state practice” (VCLT, Article 31(3)(b)) and “general practice” (38(1)(b), ICJ Statute). Even if it is “practically impossible to ascertain the practices of the nearly 200 states in the international community,” as Petersen wrote, we still survey, to the very least, the account of not only the major powers but also of the “States whose interests are specially affected” (ICJ, North Sea Continental Shelf Decision). Israel is certainly one such State whose practice thus matters.
It is in this context that I am astonished by the lack of legal analysis of the Israeli strikes in Syria, specifically because they can further illuminate the very conversations we are having about the US strike in Syria from earlier last month. I am thus left but wondering whether the fixations of international scholars on the US strike, and the US strike alone, is, in part, a reflection of an American-centric bent to international legal thinking. I note that my criticism is not solely of American legal blogs, but also European and independent sites as well who have all produced analyses examining the US strike in vacuum. International law as an academic field innately embraces comparative perspectives and diverging regional points of analysis, and we should aim to avoid getting dragged into a singular framing of a conversation. We should do better than that.
Image: The Adir jets first flight in Israel – Maj. Ofer/WikiCommons