In his post “Israeli Airstrikes in Syria: The International Law Analysis You Won’t Find,” Asaf Lubin is perplexed by the dearth of discussion by what he describes as jus ad bellum (JAB) scholars about a recent bombing of Syrian warehouses (allegedly by the Israelis), relative to the robust discussion about last month’s U.S. strike, launched in response to the Syrian use of chemical weapons. (Although he didn’t mention it, my essay on that is here.)
Mr. Lubin does a good job at making the point that this is but another in what appears to be a series of strikes by Israeli forces against Hezbollah arms shipments. In obvious frustration, he says he is “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.”
I think there are several reasons why the legal scholar response has been muted relative to the U.S. strike, beginning with the reality that many are fixated on any action taken by the Trump administration, so that alone produces responses almost irrespective of the legal issue. More importantly, the facts are scarce about what intelligence or legal theory the Israelis relied upon to launch their attack (assuming it was them). However, my guess is that they knew there were Hezbollah weapons in the warehouses that were being transshipped to the Israeli frontier, and that for legal justification, they relied upon the concept of anticipatory self-defense.
As it happens, I was in Israel attending the Second Israeli Defense Forces International Conference on the Law of Armed Conflict, hosted by the Israeli Military Advocate General (MAG), when the strikes took place. Although no Israeli discussed the strike with me, the day before the strike, we took a trip to the Golan Heights, the area Israel seized from Syria during the Six-Day War in 1967 and unilaterally annexed in 1981. The conference also included briefings by Israeli commanders about the Hezbollah threat in general. The whole experience was quite enlightening, even discounting Israeli marketing of their views.
Geoff Corn – who was also on the trip – observed in a superb post that Israel is confronting an enemy who “seeks to exploit densely populated areas to maximum effect by employing tactics designed to exacerbate civilian risk.” Geoff points out, and I agree, that Hezbollah is fighting an information war and wants to “claim victory not because it defeats its enemy in battle, but because it exploits the inevitable civilian suffering caused by its own tactics.” He adds (and, again, I agree):
This was abundantly clear as we sat on the Lebanon border, learning about Hezbollah’s massive Iranian facilitated increase in missile, artillery, and mortar capability, while peering out over the civilian villages and homes that Hezbollah uses to shield its military assets, all just mere meters away from U.N. peacekeeping posts.
In other words, it appears to me that the Israeli strike sought to destroy weapons in transit before Hezbollah can burrow them into densely-populated areas. Of course, some JAB scholar might argue about the imminence of the threat as justifying anticipatory self-defense, but if one carefully reads the Obama administration’s “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations” on that point (p. 9), it would be hard not to conclude that the strike would fit the criteria.
It is especially telling that the Obama administration concluded – correctly in my view – that it is “now increasingly recognized by the international community, the traditional conception of what constitutes an ‘imminent’ attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”
Along that line, this past January UK Attorney General Jeremy Wright gave a speech which echoed much of the Obama Administration’s approach. Wright does caution that “remote threats or threats that have not yet materialized” would not fit the necessary criteria, but I don’t think in the case of Hezbollah those exclusions would apply. Additionally, Wright endorsed – as does the Obama framework – Sir Daniel Bethlehem’s principles laid out in 2012 that included assessing whether there will be another “clear opportunity to act” defensively.
In other words, the analysis of “imminence” in this instance could properly take into account Hezbollah’s history of hostile actions against Israel, as well as its adaption of a “technique” which is “designed to exacerbate civilian risk.” A strike on the Damascus warehouses makes sense as it could well be the last “clear opportunity to act” before the weapons could be embedded into civilian areas in easy range of Israel where they could be countered only at great risk to noncombatants.
Thus, the lack of JAB discussion about the reported Israeli bombings in Syria may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense. We can’t ignore the fact that few nations other than Russia or Syria evinced much concern about the legality of the strike. Moreover, as Mr. Lubin records himself, these kinds of measured defensive strikes by Israel are not especially new, and whether he agrees or not, they do not seem especially problematic to most scholars, particularly since they typically cause few civilian casualties.
Furthermore, as I’ve argued elsewhere, many nations are understandably looking for ways of denying adversaries the opportunity to orchestrate civilian casualty incidents. Interpreting anticipatory self-defense to apply in this case might be a classic example of what the International Military Tribunal observed at Nuremberg: “law is not static, but by continual adaption follows the needs of a changing world.” The “needs of our changing world” today are to devise ways to counter the epidemic of adversaries using tactics explicitly designed to put civilians in jeopardy in order gain advantage, and Israel’s approach has much to teach us in that regard.
Also Mr. Lubin argues that transparency akin to that of the U.S. strike should be demanded of Israel. I don’t think so in this case. Nations conduct covert operations for many legitimate reasons, to include avoiding unnecessary international confrontations. There is, for example, an excellent article in the Daily Beast which suggests why Israel and Russia have mutual interests in not confirming the attack.
As a general proposition, I believe it is naïve to think that transparency tends to, ipso facto, change minds or automatically advance a country’s international standing. There are some issues where ideology dominates, almost irrespective of the facts. My sense is that people are either for or against Israeli strikes against Hezbollah arms shipments, and it is hard to see how additional transparency about the facts or even the law would alter those views.
Mr. Lubin also says we should “demand from Israel the same kind of legal scrutiny” the U.S. underwent as a result of the strike following the Syrian chemical attack. If the suggestion is that the Israelis are somehow getting a “by” from the international community with respect to the legality of their military operations, I think the evidence to the contrary is overwhelming, even if this particular incident was not viewed as especially controversial by most nations (or JAB scholars). Indeed, it is unfortunate that Mr. Lubin wasn’t at the MAG conference I just attended as it was itself evidence that the international community – not to mention the Israelis themselves – is more than willing to scrutinize closely the legality of Israel’s military operations.
Photo: Tail fins of Israeli Air Force F-16`s during joint exercise in Andravida, Greece 2016 – Timm Ziegenthaler/Stocktrek Images-Getty Images