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Sep 24, 2008 - 6 Originally called 'due remuneration', then 'Operation Change of .... 1 ; P. ..... victim and who is the aggressor, since Israel's military operations are clear acts of aggression and devastation ...... 130 R.P. Barnidge Jr 'States' Due Diligence Obligations with ...

The Hebrew University of Jerusalem

Faculty of Law

ISRAEL, HIZBOLLAH, AND THE SECOND LEBANON WAR

Yaël Ronen *

* Postdoctoral fellow, Minerva Center for Human Rights, Hebrew University in Jerusalem, Email: [email protected]

Forthcoming: 9 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW (2006)

Research Paper No. 10-08 September 2008

September, 24, 2008 Published by the International Law Forum of the Hebrew University of Jerusalem Law Faculty Editor: Dr. Tomer Broude Assistant Editor: Yonatan Berman To subscribe, free of charge, contact: [email protected] This paper can be downloaded free of charge

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Electronic copy available at: http://ssrn.com/abstract=1275761

ISRAEL, HIZBOLLAH, AND THE SECOND LEBANON WAR Yaël Ronen∗ ABSTRACT This article analyses ius in bellum questions arising from the 2006 war in Lebanon between Israel and Hizbollah. In particular, it examines Israel’s claim to self-defence, Hizbollah’s and Lebanon’s international responsibility for the attack to which Israel responded. The analysis highlights the evolving role of irregular forces, and its impact on existing international legal norms. In particular, the Lebanon conflict re-introduces, albeit with new characteristics, an old challenge, namely the regulation of conflict between a state on the one hand, and an irregular force acting from the territory of a passive neighboring state, on the other hand. Tentative conclusions offered are that the wide acceptance of Israel’s claim to self-defence, in a marked difference to past reactions, reflects the shifting attitudes towards acts of irregular military forces, particularly when characterized as terrorist acts. Second, there appears to be greater acknowledgement that the term ‘armed attack’ must be interpreted with elasticity to accommodate not new, but increasingly visible, phenomena. Finally, the recognition of a right to self-defence against an irregular force requires a more careful exploration of the relationship between the victim state and the host state. For example, the extensive criticism of Israel’s excessive use of force may eventually overshadow the acknowledgement of its right to self-defence. This conflict is therefore likely to play a role in the development of international law in many of the issues considered here.



© Yaël Ronen, Postdoctoral fellow, Minerva Center for Human Rights, Hebrew University in Jerusalem. Email: [email protected] This article will be published in 9 Yearbook of International Humanitarian Law (2006) (forthcoming, 2008). I am grateful to the editors of the YIHL for permitting the posting of this article on SSRN. I am grateful to Dr. Yuval Shany on his comments to an earlier draft of this article. I am also grateful to Ms. Avril McDonald and to Prof. Mary Ellen O’Connell for sharing with me their opinions on certain issues.

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Electronic copy available at: http://ssrn.com/abstract=1275761

TABLE OF CONTENTS 1. INTRODUCTION ........................................................................................................................................ 4

1.1 The Legal Issues ........................................................................................................................4 1.2 The Facts ....................................................................................................................................4 1.3 Hizbollah.....................................................................................................................................6 2. THE EVENTS OF 12 JULY AS AN ARMED ATTACK................................................................................. 7

2.1 Legality of the 12 July Attack...................................................................................................7 2.2 Gravity of the 12 July 2006 Attack ...................................................................................... 10 2.3 Separate Cross Border Incursions by Irregular Forces as a Continuous Armed Attack ......................................................................................................................................................... 12 3. RESPONSIBILITY FOR THE ATTACK UNDER INTERNATIONAL LAW ................................................. 14

3.1 Self-Defence following an Attack by an Irregular Force.................................................. 14 3.2 Attribution of Responsibility for the Attack to Lebanon................................................. 16 3.2.1 Lebanon’s Responsibility for the Attack on the Ground of Hizbollah’s Exercise of Governmental Authority......................................................................................................... 18 3.2.2 Lebanon’s Responsibility for the Attack on the Ground that it has Endorsed It. 19 3.2.3 Lebanon’s Responsibility for the Attack on Ground that it had not Prevented it 19 3.2.4 Conclusion ....................................................................................................................... 22 3.3 The International Response.................................................................................................. 22 4. THE EXERCISE OF THE RIGHT TO SELF-DEFENCE ............................................................................ 23

4.1 Acting in Self-Defence against a Non-Assisting Host state............................................. 23 4.2 Necessity .................................................................................................................................. 25 4.3 Proportionality ........................................................................................................................ 26 5. EPILOGUE ................................................................................................................................................ 28 6. CONCLUSIONS ......................................................................................................................................... 29

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Electronic copy available at: http://ssrn.com/abstract=1275761

1. INTRODUCTION 1.1 The Legal Issues This article analyses ius in bellum questions arising from the 2006 war in Lebanon between Israel and Hizbollah. In particular, it examines Israel’s claim to self-defence. Part 1 describes the scene of events and the actors. Part 2 explores whether the events of 12 July qualify, in themselves, as an armed attack. Part 3 concerns Hizbollah’s and Lebanon’s international responsibility for the attack. Part 4 examines whether Israel’s actions complied with the legal requirements for a lawful act of self-defence. No attempt will be made to canvas the entire doctrinal debate on all relevant issues; rather, the aim is to highlight the idiosyncrasies of the conflict and their effect on the application or development of the law. The discussion is limited to jus ad bellum issues, namely whether Israel’s resort to force was lawful. Jus in bello issues, which have been subject to heated debate with respect to this conflict, require a separate discussion. Another matter that merits separate analysis is whether Iran or Syria may be held responsible for the 12 July attack and its consequences. Throughout this article, Hizbollah is considered and referred to as an ‘irregular force’. This may be regarded by some as downplaying Hizbollah’s acts as ‘terrorist acts’. Although this latter category has become relevant under international instruments,1 it remains undefined and politically controversial2. Nonetheless, since international concern with terrorism has called into question some basic general tenets of jus ad belllum,3 reference to terrorist acts, in the sense of acts against the bodily integrity of civilians intended to intimidate a population or compel a government to do or abstain from any act,4 will be made where appropriate. 1.2 The Facts On 12 July 2006, a Hizbollah force crossed the UN-identified line between Israel and Lebanon (the ‘Blue Line’) and attacked an IDF patrol some 200m futher south. They killed three soldiers and kidnapped two others. Five more Israeli soldiers were killed while in pursuit of the Hizbollah force into Lebanese territory. At the same time, Hizbollah fired Katyusha rockets and mortar shells at Israel’s border communities and IDF posts. Three civilians were injured. Israel immediately informed the Security Council5 that it reserves the right to act in accordance with Article 51 of the Charter of the United Nations and exercise its right of selfdefence when an armed attack is launched against a Member of the United Nations. 1

e.g., General Assembly A/49/60 Measures to Eliminate International Terrorism 17 Feb 1995, Security Council res. 1373(2001), Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2 Dec 2004). 2 For a concise description of the problem see Report of the High-level Panel on Threats, Challenges and Change, ibid. paras. 157-164. 3 R. Müllerson, ‘Jus ad Bellum: Plus ça change (le monde) plus c’est la même chose (le droit)?’ 7 Journal of Conflict and Security Law (2002) p. 149. 4 The relevant element in the definition of terrorism in the Report of the High-level Panel on Threats, Challenges and Change, supra n. 1 is “An act… that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act”, para. 164. 5 Identical letters dated 12 July 2006 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council A/60/937–S/2006/515.

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On the night of 12 July, the Israeli Government decided unanimously to respond by military action. The Israeli Defence Forces (IDF) immediately began a military campaign.6 The Lebanese Government, for its part: ‘…was not aware of and does not take responsibility for, nor endorses what happened on the international border’.7 Hizbollah Secretary-General Nasrallah revealed that Hizbollah had been planning the operation for almost five months and confirmed that the Lebanese Government had not been informed of the plans.8 In the ensuing conflict, Hizbollah fired 3,970 rockets at Israel, expressly targeting civilian communities.9 Israel carried out over 8,700 flown sorties over Lebanese territory and over 2,000 coastal bombardments towards it.10 The fighting ceased with the entry into force of a UN-brokered cease fire on 14 August 2006. By 1 October the IDF had completed its withdrawal from southern Lebanon.11 According to official Lebanese sources12, 1,191 Lebanese were killed and 4,409 injured. These figures do not distinguish between civilians and Hizbollah fighters. Israel claims that over 530 Hizbollah fighters were killed.13 In addition, over 974,000 Lebanese were displaced.According to official Israeli sources, 43 Israeli civilians and 117 IDF soldiers were killed during the conflict.14 Close to 4,300 civilians were treated in hospitals for injuries. Some 300,000 civilians were displaced and more than a million were forced to live in underground shelters.

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Originally called ‘due remuneration’, then ‘Operation Change of Direction’, and since March 2007 officially called ‘the Second Lebanon War’. Government Decision 1468 of 25 March 2006. 7 N. Qawas and R. El Rafei ‘Siniora's Cabinet makes clear it had nothing to do with ‘what happened’’ The Daily Star 13 July 2006 ?edition_id=1&categ_id=2&article_id=73930>. All internet sources were last checked on 15 May 2007. 8 ‘Nasrallah: ‘Only exchange will win back troops, “Whole world will not be able to retrieve 2 captured ‘Israeli’ soldiers except through indirect negotiations’’’ Daily Star (Lebanese Daily Newspaper) 13 July 2006 . 9 ‘Hezbollah chief threatens a wider war’, Aljazeera 4 August 2006, http://english.aljazeera.net/English/Archive/Archive?ArchiveID=24741>. 10 IDF spokesperson . 11 except from the village of Ghajar. The withdrawal was confirmed by UNIFIL ‘The IDF withdraws from the south, except Ghajar’ UNIFIL Press Release 1 October 2006 . Until 1967 Ghajar was a Syrian village on the Syrian-Lebanese border. It was occupied by Israel during the Six Day War. Apparently the northern part of the village was then already inside Lebanese territory. When Israel withdrew from Lebanon in May 2000 the UN drew the ‘Blue Line’ running through the middle of Ghajar at its narrowest point, cutting it in two, with the northern part inside Lebanon, and the southern part inside Israel. At the time of writing, all villagers hold Israeli citizenship. This complicates the process of withdrawal. Israel carried out a further withdrawal around Ghajar on 7 November 2006. ‘IDF withdraws from most of the surrounding area of Ghajar Village this afternoon’ UNIFIL Press Release 7 November 2006 . 12 Lebanese inter-ministerial High Relief Commission, . 13. In December 2006 Hizbollah official Mahmoud Komati admitted in an interview to AP to some 250 Hizbollah fighters killed . 14 Website of the Israeli Ministry of Foreign Affairs .

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1.3 Hizbollah Hizbollah is a Shi’ite organization that was founded during the Lebanese civil war as a merger of several groups fighting against the 1982 Israeli occupation of Lebanon. It was set up with the financial and logistic support of Iran, and to this date continues to be dependent on Syria and Iran.15 After the Ta'if accord of 1989, which marked the end of the civil war in Lebanon, Hizbollah forces redeployed on the perimeter of Israel’s self-declared security zone. The Lebanese Government, represented in the south by only a token security presence, has since acquiesced in Hizbollah’s armament efforts and its activities.16 When Israel withdrew from Lebanon in 2000, Hizbollah positioned its fighters and weapons along the Blue Line. It pledged to continue opposing Israel as long as it occupied the Shab’a Farms area, which Lebanon has since 2000 been claiming as Lebanese territory.17 It also pledged to pursue the release of Lebanese detainees and prisoners held in Israel, and the July 12 attack was directly related to this aim.18 Even after Security Council Resolution 1559 (2004), which called for the disbanding of militias in Lebanon,19 Hizbollah continued to maintain an active presence along the Blue Line and in the south of Lebanon. Official Israeli sources list 19 incidents of Hizbollah attacks on Israel during the six years between Israel’s withdrawal and the 12 July attack,20 in which Israeli soldiers were killed and both soldiers and civilians abducted. The prevalent

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J. Brandon, ‘Factfile: Hezbollah’, ; D. Sobelman, ‘New Rules of the Game: Israel and Hizbollah after the Withdrawal from Lebanon’ Jaffee Center for Strategic Studies Memorandum No. 69 ch. 1 ; P. Salem, ‘the Future of Lebanon’ 85 Foreign Affairs (2006) p. 13 at 20. 16 D. Berkovich, ‘Hizbollah’s Primary Agent of Change: The Role of the Lebanese Army’ 9 Strategic Assessment (November 2006) p. 28 at 30. 17 This area was under Syrian sovereignty when Israel occupied it in 1967, and accordingly Israel contends that it is not Lebanese territory. This position is backed by the UN. Lebanon and Syria (as well as other Arab and Muslim states) contend that this area was ceded from Syria to Lebanon and accordingly is Lebanese. Interestingly, this argument only came to light shortly before Israel’s withdrawal from Lebanon in 2000. See C. Mallat, ‘The Hezbollah-Israel War: Narratives and ‘Legal Truth”’ Jurist 28 July 2006 . For a historical and legal analysis of the issue see R. Erlich ‘Raising the Issue of the Sheba’a Farms in the Proposed AmericanFrench Security Council Draft Resolution for Ending the Fighting: Background Information and Significance’ Intelligence and Terrorism Information Center at the Center for Special Studies 9 August 2006 . 18 Hizbollah’s account of the events that sparked the confrontation is as follows: July Wednesday 12, 2006 At 9:05am: Fulfilling the promise it pledged [to return Lebanese prisoners held in Israel], the IR [Islamic Resistance] captured two “Israeli” soldiers on the occupied Palestinian borders and moved them to a safe place. ‘Chronicle of heroic confrontations between Islamic Resistance (IR) fighters & “Israeli” occupation soldiers according to IR statements’ ?filename=20060713174217122>. Nassarallah emphasized the aim of the abduction in a press conference on 12 July 2006 . 19 In the resolution the Security Council: ‘3. Calls for the disbanding and disarmament of all Lebanese and non-Lebanese militias; 4. Supports the extension of the control of the Government of Lebanon over all Lebanese territory;’ 20 ‘Hizbullah attacks along Israel’s northern border 2000-2006’ . AFP lists 21 incidents during the period until the end of October 2003, Sobelman, loc. cit. n. 15, Appendix.

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Western view is that Hizbollah is a terrorist group.21 In contrast, the majority of the Lebanese population as well as many non-Western States regard Hizbollah as a resistance movement against Israeli aggression.22 In the 1990s Hizbollah expanded its activities to the political and social arenas.23 It has since participated in parliament and Government24 and enjoys considerable political clout. It is a partner whose consent is required in the decision-making process on major issues in the country.25 2. THE EVENTS OF 12 JULY AS AN ARMED ATTACK The immediate triggers of the conflict, namely the abduction and killing of the Israeli soldiers and the firing of rockets toward civilian communities, were carried out by Hizbollah’s use of force. The question is whether this force amounted to an ‘armed attack’ under Article 51 of the UN Charter.26 First, since a right of self-defence only arises in response to a use of force that was unlawful,27 the following section examines the legality of Hizbollah’s action. Subsequent sections examine whether the specific use of force amounted to an armed attack. 2.1 Legality of the 12 July Attack Israel claims that Hizbollah’s act on 12 July was a terrorist act. Hizbollah claims that it was resisting Israeli aggression, in defence of ‘natural rights’ supported by international law.28 These claims represent different narratives of the immediate conflict and its wider political and historic dimensions. While they run parallel to each other with no meeting point,29 they are not outside the scope of legal analysis.

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e.g., US Foreign Terrorist Organizations 11 October 2005 , S/PV.5489 (14 July 2006) p. 10; Canada: Terrorist Organizations Listed under Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code; UK: List of Proscribed Terrorist Organizations Under the Terrorism Act 2000 (External Security Organization only); Netherlands: ‘beantwoording_toezegging_inzake_de_positie_van_hezbollah’ The Netherlands Ministry of Foreign Affairs ; Australia: List attached to the Security Legislation Amendment (Terrorism) Act 2002 (External Security Organization only); European Parliament: Resolution on the Situation in Lebanon Official Journal 320 E , 15/12/2005 p. 0257– 0259. Slovakia, S/PV.5493 (21 July 2006) p. 18 on the specific acts. 22 Sobelman, loc. cit. n. 15, at pp. 59-60. . e.g. Algeria: ‘Unless one wants to make entire peoples disappear from the face of the Earth, legitimate resistance to occupation will not go away as long as the causes that have given rise to it are not eliminated’, S/PV.5493 Resumption 1 (21 July 2006) p. 21; Cuba: ‘Those allegations are merely part and parcel of an elaborate Zionist scheme to break resistance to aggression and invasion in the region’, ibid., p. 31. 23 ‘Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled ‘Human Rights Council’’ Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council resolution S2/1, UN Doc. A/HRC/3/2 (23 Nov 2006) (‘HRC Commission of Inquiry’) para. 37. 24 In July 2006 Hizbollah held fourteen seats in the Lebanese parliament, and was represented by two ministers in the Government. 25 Berkovich, loc. cit. n. 16, at p. 30. 26 The other question, whether an irregular force is capable of carrying out an armed attacked, is addressed below at 3.1 Self-Defence following an Attack by an Irregular Force. 27 ‘there can be no self-defence against self-defence’ USA v. von Wizsaecker et al (Nuremberg 1949), 14 NMT p. 314 at 329. 28 Nasrallah statement, supra n. 8. 29 Mallat, loc. cit. n. 17.

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The UN Charter and customary law prohibit the unilateral use of force except in self-defence. The argument that the 12 July attack was an act of self-defence can easily be dismissed. This right is undisputedly available to states.30 The Lebanese Government did not claim that it was acting (through Hizbollah) in self-defence, rather it attempted to dissociate itself from the act. It would have been hard for it to sustain such a claim given that it had not known about the attack beforehand. Needless to say, Lebanon did not inform the Security Council that it was acting in self-defence. Another potential ground for Hizbollah’s use of force might be self-determination. To be sure, at no point had Hizbollah or any of its proponents referred to the right to selfdetermination.31 Yet the repeated reference to ‘resistance to aggression’, and the frequent invocation of this term in the context of the Israeli-Arab and Israeli-Palestinian conflict, invite an examination whether the 12 July attack qualifies as an act in pursuit of selfdetermination. The question whether the pursuit of self-determination can justify the use of force is beyond the scope of this article,32 yet a few comments are appropriate as to its application in the present case. Hizbollah’s immediate objective in abducting the soldiers was to advance the release of Lebanese detainees and prisoners in Israel. Another objective was the liberation of the Shab’a Farms Area from Israeli occupation. The right to self-determination concerns the right of a people to be free of foreign occupation, alien domination or a racist regime. It does not concern release of detainees, prisoners of war or even hostages. As a right pertaining to peoples, it is not as such applicable to any territorial dispute, including occupation. The mere presence of a population in an occupied territory does not automatically render the conflict over the territory one of self determination. Instead, the liberation of territory from occupation is governed by the traditional law on use of force and self-defence. Accordingly, pursuit of the various Hizbollah or Lebanese interests does not fall within the scope of ‘self-determination’. Another Hizbollah objective was the liberation of areas which it considers occupied by Israel other than the Shab’a Farms, namely the West Bank and Gaza Strip.33 A perusal of the international debate on the conflict reveals that states condemning Israel’s action often conflated the situation in Lebanon with the occupation of the West Bank and Gaza Strip.34 30

Art. 51 UN Charter. This is the standard reading of Article 51 underlying the overwhelming bulk of current literature. Cf. Y. Dinstein, War, Aggression and Self-Defence 4th edn. (Cambridge, CUP 2002) p. 181-182 31 Although reference to self-determination is often made in the aftermath of events, sometimes in explanation of significant changes in international relations and possibly international law, e.g. recognition of Bangladesh as an independent state. J. Crawford, The Creation of States in International Law, 2nd edn. (Oxford, OUP 2006), pp. 139-142. 32 Even if a right to use force in pursuit of self-determination is applicable in the circumstances examined here, it could not justify violations of the jus in bello, such as the targeting of rockets at civilian communities. As noted in the Report of the High-level Panel on Threats, Challenges and Change, supra n. 1, there is nothing in the fact of occupation – and consequently in the delineation of possibly permissible use of force in pursuit of self-determination - that justifies the targeting and killing of civilians (para. 160). 33 as well as Israeli territory within 1948 armistice lines, e.g., ‘The Islamic Resistance pounds Acre city in occupied Palestine with a burst of missiles’, 2 August 2006 Hizbollah website, . Hizbollah consistently refers to ‘Israel’ (in parentheses) to indicate that it does not acknowledge its right to exist as a state. 34 Letter dated 26 July 2006 from the Permanent Observer of the League of Arab states to the United Nations addressed to the President of the Security Council, UN Doc. S/2006/582; Syria: ‘The real terrorism in the region is the continued occupation by Israel of Arab lands’ S/PV.5493 Resumption 1 (21 July 2006) p. 15; Egypt: ‘The current source of threat and tension is not only the continuous military operations by Israeli forces in Palestine and Lebanon… The core issue is… the continued occupation by Israel of Arab lands in Palestine,

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Yet neither Lebanon nor Hizbollah is regarded by the International community as representing the Palestinian people.35 Even if by denying the right of the Palestinian people to self-determination Israel is violating an obligation erga omnes,36 this does not entitle any self-appointed vigilante, in this case Hizbollah, unilaterally to take on the cause of another people through the use of force. Even assuming that denial of self-determination is analogous to an armed attack in that it may justify the use of force, there is no concept of ‘collective self-determination’ analogous to ‘collective self-defence’. Accordingly, there appears to be little basis to the claim that Hizbollah was acting lawfully in pursuit of the right of self-determination of the Palestinians. In the international debate following the eruption of the conflict in Lebanon, two different camps could be distinguished. One camp comprised the UN Secretary-General37 and states that considered Hizbollah’s act an unlawful attack and the immediate trigger for the conflict,38 thereby rejecting the argument that Israel’s overall policy is immediately at issue or relevant. Some of them further indicated that the attack was inimical to the Lebanese and regional interests, implicitly rejecting any justification for the attack on a basis such as self-determination. For example, the UK argued:39 Lebanon and Syria since 1967…That is the issue that the Security Council has completely failed to address’, ibid., p. 23; Arab League: ‘occupation is the root cause of all the violence and tension in the region’, ibid., p. 27; Morocco: ‘Needless to remind the Council that this aggression adds up to another aggression against the Palestinian people’, ibid., p. 29; Iran: ‘Those allegations are merely part and parcel of an elaborate Zionist scheme to break resistance to aggression and invasion in the region and to deflect attention from the root cause of all tensions in the Middle East, that is, the continued occupation of Palestinian, Lebanese and Syrian territories and its fallout’, ibid., p. 32; Committee on the Exercise of the Inalienable Rights of the Palestinian People: ‘The Committee continues to consider that the occupation by Israel of Palestinian territory remains the root cause of the conflict’ ibid., p. 42. This conflation is partly explained by the fact that the debate was held under the title ‘Situation in the Middle East’. States supporting Israel also addressed the situation in Lebanon and in the West Bank and Gaza jointly, but with respect to jus in bello. 35 Hizbollah does not claim to be a Palestinian organization, but emphasizes its Lebanese character. Jon van Kemp, ‘The organization Bush condemns as so-called ‘terrorists’ - Who is Hizbullah? The party that welcomes outside aid but is no one's puppet!’, Hizbollah’s website, . 36 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, General List No. 131, Judgement of 9 July 2004 (‘Wall Advisory Opinion’), paras. 88, 155-158. 37 S/PV.5492 (20 July 2006) p. 3. 38 The UN Secretary-General: ‘Hizbollah’s provocative attack on 12 July was the trigger for this crisis’ S/PV.5492 (20 July 2006) p. 3; A G-8 statement on 16 June noted: ‘In Lebanon, Hizbollah, in violation of the Blue Line, attacked Israel… undermining the democratically elected government of Prime Minister Fuad Siniora…’ ; Peru: ‘This escalation of violence and its extension to Lebanon was provoked by an attack by Hizbollah, an act of aggression unacceptable to any state and which prompted a military reaction by Israel in Lebanon’ S/PV.5493 Resumption 1 (21 July 2006) p. 3; Argentina: ‘we reiterate once again that the primary responsibility falls on Hamas and Hizbollah due to their provocative and irresponsible actions in recent months’ ibid., p. 9; France: ‘In Lebanon, Hizbollah bears responsibility for the unleashing of hostilities, and we condemn in the strongest terms the continued firing of rockets on Israeli cities that blindly kill and wound civilians’ ibid., p.11; Australia: ‘We need to bear in mind responsibility for the current crisis. It began with the attacks on Israel by Hamas and Hizbollah, including the capture of Israeli soldiers and the launching of rockets and mortar bombs into Israel’ ibid., p. 27. US: ‘Today Hizballah terrorists operating from Lebanon kidnapped two Israeli soldiers and launched rocket attacks against civilian targets in Israel. The United States condemns in the strongest terms this unprovoked act of terrorism’ White House statement on Condemnation of Hizballah Kidnapping of Two Israeli Soldiers, 12 July 2006 . 39 S/PV.5493 Resumption 1 (21 July 2006) p. 6

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It is important to remember that this crisis was precipitated by Hizbollah. Its militants crossed into Israel and killed eight Israeli soldiers and kidnapped two more. This is a calculated attempt by Hizbollah to further destabilize the region, without the slightest regard for the potential impact of its actions on the people of Lebanon, the Lebanese Government and the wider region; The other camp comprised many Arab and Muslim states that condemned Israel as the aggressor, usually with reference to its occupation of Lebanon (the Shab’a Farms area), of the Palestinian territories, or of both, as the immediate source of the conflict.40 Some hailed Hizbollah’s actions as resistance to occupation.41 However, perhaps the most striking about the Arab response was its absence. Many States remained silent for days. Some, such as Egypt, Jordan and Saudi Arabia, expressly criticized Hizbollah in an Arab League’s emergency summit.42 While this criticism was not framed in legal terms, it casts doubt on whether Hizbollah’s acts can be justified on grounds of self-determination. Security Council Resolution 1701(2006) points to Hizbollah’s attack as the trigger for the conflict.43 The Commission of Inquiry appointed by the Council of Human Rights,44 despite not being mandated to address jus ad bellum matters, also referred to ‘Hezbollah’s illegal action under international law of 12 July 2006’ as the trigger for the conflict.45 To summarize, although there is no clear consensus on the matter, it is difficult to provide a legal basis for Hizbollah’s use of force under international law. 2.2 Gravity of the 12 July 2006 Attack In the Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United states of America) (‘Nicaragua’) the International Court of Justice interpreted Article 51 as setting a threshold of gravity for the qualification of an act as an ‘armed attack’.46 This controversial47 requirement was reiterated in the Case Concerning Oil 40 Lebanon: ‘The Lebanese Government condemns and denounces the Israeli aggression, which is a blatant violation of all international resolutions, laws, conventions, and customs. I need not explain to you who is the victim and who is the aggressor, since Israel’s military operations are clear acts of aggression and devastation aimed to bring Lebanon to its knees and to subvert it by any means’, S/PV.5489 (14 July 2006) p. 5; see also statements by Syrua, Egypt, Iran, the Arab League and the Committee on the Exercies of the Inalienable Rights of the Palestinian People, supra n.34, as well as Malaysia speaking on behalf of the Non-Aligned Movement, quoting UN Doc. S/2006/491, S/PV.5493 Resumption 1 (21 July 2006); Saudi Arabia: ibid., p. 20; Jordan: ibid., p. 24; Djibouti: ibid., p. 31; Bolivia: ibid., p. 36; Cuba: ibid., p. 37; Sudan: ibid., p. 38; UAE: ibid., p. 42-3; Pakistan: ibid., p. 44. China: S/PV. 5489 (14 July 2006) p. 11. 41 E.g. Algeria: S/PV.5493 Resumption 1 (21 July 2006) p. 21. 42 New York Times, ‘Militia Rebuked by Some Arab Countries’ 17 July 2006 p. 1. These positions were guided not by legal concerns but by political frustration with Islamic extremism and with Iran. E. Landau, ‘Reactions in the Arab World: Blurring the Traditional Lines’, 9 Strategic Assessment (August 2006) pp. 17-19. 43 SC res. 1701(2006) preambular para. 2. The Resolution nonetheless requests the UN Secretary-General to develop proposals to deal with the Shab’a Farms area (operative para. 10). This can be read as a political victory to Hizbollah, even if not a legal recognition of its claim. 44 The Commission of Inquiry can hardly be accused of a pro-Israeli bias, e.g. H. Upton, ‘The Human Rights Council: First Impressions and Future Challenges’, 7 HRLR (2007) p. 29, at 39; UN Watch, ‘Reform or Regression? An Assessment of the New UN Human Rights Council’, 6 September 2006, . 45 HRC Commission of Inquiry, supra n. 23, para. 61. 46 [1986] ICJ Rep. 14, para. 191 47 e.g R. Higgins, Problems and Process (Oxford, OUP, 1994), p. 251; Müllerson, loc. cit. n. 3, at pp. 180-181; Nicaragua, loc. cit. n. 46, Dissenting Opinion of Judge Schwebel 349.

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Platforms (Islamic Republic of Iran v. United States of America) (‘Oil Platforms’).48 In the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (‘Congo v. Uganda’)49 Judges Kooijmans50 and Simma51 both opined that the test of gravity of the attack is the same whether the perpetrator is the armed forces of a state or an irregular force. In Nicaragua the ICJ distinguished between ‘the most grave forms of the use of force’ that constitute armed attacks and other less grave forms.52 No concrete test was provided for ‘grave forms’. At the same time, the Court distinguished an armed attack from ‘a mere frontier incident’.53 It has been argued that the 12 July incident was just such an incident.54 However, this seems a hasty dismissal of the incident.55 First, the ambush took place 200 meters within Israeli territory and not on or across the ‘frontier’. Also, it is submitted that to take the Nicaragua distinction literally would be erroneous.56 The severity of the attack is also significant, as the words ‘a mere’ indicate. The Court may have referred to spontaneous incidents of little significance, which would not have attracted any attention were it not for their taking place across an international border and nominally engaging the law on the use of force. In contrast, premeditated57 killing and abducting of soldiers can be considered a serious frontier incident. Another matter is that at the same time that the abduction took place, rockets were fired at civilians within Israel. This was probably not what the Court had in mind when it referred to ‘a mere frontier incident’. Still, the question remains whether the Hezbollah attack could also be qualified as sufficiently grave. Dinstein argues that an armed attack presupposes ‘a use of force producing (or liable to produce) serious consequences, epitomized by territorial intrusions, human casualties or considerable destruction of property’.58 Hizbollah’s actions on 12 July clearly fall within this definition. Nonetheless, in Oil Platforms the Court relied on a much narrower definition. It ruled that a missile attack causing damage to a ship and injury to six crew members and the mining of a single ship when loss of life has occurred, do not, even cumulatively, qualify as an armed attack.59 In reaching this conclusion the Court attached significance to the absence of a specific intention to target the two ships.60 Even under this exacting test, the 12 July events can qualify as an armed attack. There is no doubt as to the

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Judgement of 6 November 2003 General List No. 90, para. 51. General List No. 116, Judgement of 19 December 2005. 50 Congo v. Uganda, loc. cit. n. 49, Separate Opinion of Judge Kooijmans, para. 31. 51 Congo v. Uganda, loc. cit. n. 49, Separate Opinion of Judge Simma, para. 13. 52 Nicaragua, loc. cit. n. 46, para. 191. 53 Nicaragua, loc. cit. n. 46, para. 195. 54 M.E. O’Connell, ‘Proportionality and the Use of Force in the Middle East Conflict’ Jurist 18 July 2006 ; A. d’Amato, ‘Qana, War Crimes, and the Pending UN Resolution on Lebanon’ Jurist 31 July 2006 . 55 M. Kelly, ‘Israel v. Hezbollah: Article 51, Self-Defense and Pre-emptive Strikes’ Jurist 29 July 2006 . 56 Dinstein, loc. cit. n.30, at p. 195. 57 Nasrallah statement, supra n. 8. 58 Dinstein, loc. cit. n.30, at p. 193. The definition is within the discussion of attacks by states, but seems equally applicable to attacks perpetrated by irregular forces, see supra nn. 50-51 and accompanying text. 59 Oil Platforms, loc. cit. n. 49, para. 64. 60 For criticism of this new criterion see N. Ochoa-Ruiz and E. Salamanca-Aguado, ‘Exploring the Limits of International Law relating to the Use of Force in Self-defence’, 16 EJIL (2005) p. 499 at 514. 49

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intentional targeting of both the patrol and the civilian communities, and if the loss of life is a benchmark,61 then surely the 12 July events qualify as an armed attack. 2.3 Separate Cross Border Incursions by Irregular Forces as a Continuous Armed Attack An alternative argument is that even if the 12 July attack was not sufficiently grave as to constitute an armed attack by itself, it was one in a series of Hizbollah offensives, which together amount to an armed attack. This argument relies on the ‘accumulation of events’ doctrine. According to this doctrine, even if each incident is only a ‘needle prick’ which does not qualify as an armed attack, the totality of incidents may constitute a systematic campaign that does rise to the level of armed attack.62 This approach broadens the scope of the right as it permits a reaction in self-defence even once the initial attack is terminated, provided that the circumstances reveal a threat of similar actions from the same source.63 This approach is similar to a claim of anticipatory self-defence, but is not identical. It is based on the fact that an armed attack had already began to take place, and that the specific incident forms, with impending ones, a continuum. Israel has in the past relied on the accumulation of events doctrine.64 In line with this, it regarded the 12 July attack not as an isolated event but as one incident within an ongoing paramilitary campaign by Hizbollah.65 This wide interpretation of self-defence has been debated in the Security Council and elsewhere since the 1950s.66 Israel may be regarded as its strongest advocate,67 but it has not been alone. Similar claims were made by the US and others.68 In 1980 ILC Rapporteur Ago implicitly accepted the validity of the doctrine when he noted:69 If, for example, a state suffers a series of successive and different acts of armed attack from another state, the requirement of proportionality will certainly not mean that the victim state is not free to undertake a single armed action on a much larger scale in order to put an end to this escalating succession of attacks. Yet when argued in the Security Council, the accumulation of events doctrine was not endorsed.70 Instead, acts of purported self-defence were condemned as reprisals and 61

Oil Platforms, loc. cit. n. 49, para. 77. M.N. Feder, ‘Reading the U.N. Charter Connotatively: Toward A New Definition of Armed Attack’ (19861987) NYU J of International Law and Politics p. 395 at 416; Dissenting Opinion of Judge Schwebel in Nicaragua, loc. cit. n. 46. 63 Ochoa-Ruiz, loc. cit. n. 60, at p. 515; 64 Feder, loc. cit. n. 62, p. 415-418; D. Bowett ‘Reprisals Involving Recourse to Armed Force’ 66 AJIL (1972) p. 1, at 6. 65 Address to the Knesset by Prime Minister Ehud Olmert, 17 July 2006, . 66 Bowett, loc. cit. n. 64, and Feder, loc. cit. n.62. 67 The similarity between the circumstances of the July 2006 Conflict and the Israeli invasions of Lebanon in 1978, 1981 and 1982 is striking. On the latter see B.A. Feinstein, ‘The Legality of the Use of Armed Force by Israel in Lebanon – June 1982’ 20 Israel Law Review (1985) p. 263; W.V. O’Brien, ‘Reprisals, Detterance and Self-Defense in Counterterror Operations’ 30 Virginia JIL (1989-1990) p. 421. 68 C. Gray, International Law and the Use of Force (Oxford, OUP 2000) at pp. 107-108 and sources cited there. 69 Yearbook of the International Law Commission, 1980, vol. II (Part One), UN Doc. A/CN.4/SER.A/1980/Add.1 (Part 1), p. 69, para. 121. The matter is further addressed below in 4.3 Proportionality. 62

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unlawful preemptive action.71 Gray argues that this was not because of doctrinal differences as to the scope of ‘armed attack’, but because the interest that Israel was claiming to defend was unlawful, namely illegal occupation or denial of the right of a people to exercise selfdetermination.72 However, the refusal to accept the doctrine predates the Israeli occupation of territories in 1967, and was not limited to Israeli claims.73 Some consider that Security Council Resolutions 1368(2001) and 1373(2001) mark a turning point in the Council’s approach towards repeated but separate attacks.74 The Resolutions affirm the right to selfdefence following a single incident on the basis that it (‘like any act of international terrorism’) constituted a threat to international peace and security, which states were empowered to combat by all means.75 This has been interpreted as acceptance of the wider interpretation of the right to self-defence. According to this view, the Security Council regarded unilateral action as neither reprisal nor anticipatory or preemptive action, but as self-defence against a continuous attack that had begun to take place, and included the threat of future attacks.76 In Nicaragua the ICJ appeared not unwilling to accept the doctrine as a matter of law, but found it inapplicable in the circumstances.77 In contrast, in Oil Platforms, where the US relied on it, the Court examined the US claims to self-defence only with regard to the incidents that have taken place, and disregarded the potential implications of the more general threat argued by the US. Some consider this an implicit rejection of the accumulation of events doctrine.78 However, the very fact that the Court examined whether each incident amounted to an armed attack is an implicit acceptance that self-defence is not limited to halting an ongoing offensive but may under certain circumstances follow an incident that has already ended not through the volition of the victim state.79 The Court’s position on the doctrine as a matter of principle thus remains unclear. The international support of Israel’s 2006 claim to a right of self-defence was in stark contrast to previous reactions.80 It is unlikely that the severity of the specific attack was a 70 Feder, loc. cit. n.62, at p. 416, B. Levenfeld ‘Israel’s Counter-Fedayeen Tactics in Lebanon: Self-Defense and Reprisal Under Modern International Law’ 21 Columbia J of Transnational Law (1982) 1, at 19. 71 For a detailed description see O’Brien, loc. cit. n. 67, at pp. 445 onwards. 72 Gray, loc. Cit. n. 68, at pp. 101-102; see also Bowett, loc. cit. n. 64, at pp. 18-19. Gray distinguishes military action in response to cross-border incursions by irregular forces onto the territory of the victim state from military action following attacks on nationals abroad. Claims of self-defence with regard to the latter, she claims, were rejected as unlawful reprisals, while in the former case, theoretically the ‘accumulation of events’ doctrine might be applicable, had it not been for the specific circumstances in which it was raised. This distinction is questionable. Whether an attack on nationals is on the territory of their national state (‘crossborder incursion’) or abroad (‘terrorism’) is often a matter of convenience. The means (attack of civilians) and purpose (political aims, exercise of self-determination or other) are the same. The irregular forces certainly do not regard the two types of action as qualitatively distinct. Accordingly, cross-border incursion on to a state’s territory and attacks on its nationals abroad form elements in a single sequence of events, and the doctrine should not be adopted with regard to the one but not the other. 73 Bowett, loc. cit. n. 64, at p. 8. 74 M.N. Shaw, International Law (5th edn 2003) p. 1028. 75 Res. 1368(2001) preambular paras. 1, 2 and operative paras. 1, 5; res. 1373(2001) preambular para. 3 and operative para. 8. 76 See also R. Wedgwood, ‘Responding to Terrorism: The Strikes against Bin Laden’ 24 YJIL (1999) p. 559 at 565; Müllerson, loc. cit. n. 3, at p. 180. 77 Nicaragua, loc. cit. n. 46, para. 231, Oil Platforms, loc. cit. n. 49, paras. 62-64. Gray, loc. cit. n. 72, at p. 108. 78 Ochoa Ruiz, loc. cit. n. 60, at p. 517. 79 Oil Platforms, in contrast to other situations where the matter was discussed, was not concerned with acts characterized as terrorist activity. 80 For detailed review of debates in the Security Council see O’Brien, loc. cit. 67.

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decisive factor, in view of the fact that more severe attacks (in terms of casualties, particularly civilian ones) had in the past not been accepted as grounds for self-defence in the eyes of the Security Council. Rather, it seems that at the heart of the matter was a new appreciation of the threat that Israel faces. Canada expressly commented that it was clear that Hizbollah’s intention was to continue its attacks on Israel.81 The change in attitude can also be explained under Gray’s argument that the accumulation of events doctrine was rejected because of the illegality of Israel’s territorial claim (notwithstanding the inconsistency of her argument with pre-1967 rejection of the doctrine); the positive reception by the Security Council of the doctrine that repeated incidents form a continuous attack was possible because member states no longer considered Israel to be in violation of international law with regard to Lebanon. In any event, whether the doctrine has only recently been adopted or has only now become applicable on the facts, it appears to have been at least tentatively accepted. 3. RESPONSIBILITY FOR THE ATTACK UNDER INTERNATIONAL LAW The previous discussion focuses on whether the events of 12 July could by themselves constitute an armed attack. The following is an analysis of responsibility for the attack. Two issues will be addressed. The first is whether an act by an irregular force, namely Hizbollah, can trigger the right of self-defence. The second question is whether Lebanon can be held internationally responsible for the attack.82 3.1 Self-Defence following an Attack by an Irregular Force Since the perpetrator of the attack on 12 July was Hizbollah, the question that must be addressed is whether an attack by an irregular force that does not belong to a state can qualify as an armed attack for the purpose of Article 51 of the UN Charter. For more than fifty years the generally accepted interpretation of Article 51 of the UN Charter has been that a right to self-defence arises in response to an armed attack only by a state,83 although by no means was this the only interpretation.84 The traditional interpretation argues, inter alia, that the international personality of an irregular force that is a non-State actor does not extend so far as the capacity to launch an attack within the meaning of the UN Charter. Hence, the acts of an irregular force are neither lawful nor unlawful in terms of the use of force under international law.85 The aftermath of the terrorist attacks on

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‘It is now clear that Hizbollah’s objectives went far beyond the abduction of Israeli soldiers. It is also obvious that the abduction was only the prelude to major offensive intended to inflict as much pain and suffering as possible, which is evident in Hizbollah’s indiscriminate launching of hundreds of rockets into urban areas deep in Israel with devastating consequences, including the deaths of innocents. It was also intended to sabotage the internal Lebanese democratic political dialogue, whose objectives include fulfilling res. 1559(2004). And finally, it was intended to serve the interests of Hizbollah’s backers in Damascus and Tehran’ S/PV.5493 Resumption 1 (21 July 2006) p. 39. 82 Another question, beyond the scope of this article, is whether responsibility can be attached to Iran or Syria. 83 Separate Opinion of Judge Kooijmans, Wall Advisory Opinion, loc. cit. n. 36, para. 35. 84 e.g., R. Wedgwood 1999, loc. cit. n. 76, at p. 564; Dinstein, loc. cit. n. 56, at p. 204 85 A. McDonald, ‘Terrorism, Counter-terrorism and the Jus in Bello’, in ‘Terrorism and International Law: Challenges and Responses’, Contributions presented at the Meeting of independent experts on Terrorism and International Law: Challenges and Responses. Complementary Nature of Human Rights Law, International Humanitarian Law and Refugee Law, organized by the International Institute of Humanitarian Law, San Remo, 30 May-1 June 2002 and the Seminar on International Humanitarian Law and Terrorism, organized by the

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11 September 2001 (‘9/11’) is regarded as a turning point in this respect, although opinions differ on the correct interpretation of practice. Security Council Resolutions 1368(2001) and 1373(2001) affirmed the right of self-defence, without designating a state responsible for the attacks. Some regard them as the vindication of the right to self-defence against an irregular force, at least when the latter carries out a large scale attack.86 Others, however, emphasize the linkage between Al Qaeda and Afghanistan in justification for the military response.87 The ICJ appears to uphold the traditional approach. In the advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory88 (‘Wall Advisory Opinion’) the Court stated that ‘Article 51 of the Charter thus recognizes the existence of an inherent right of self-defense in the case of armed attack by one state against another state. However, Israel does not claim that the attacks against it are imputable to a foreign State’. It concluded that ‘Article 51 of the Charter has no relevance in this case’. However, the Court also based its conclusion on the fact that ‘Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, the territory’.89 The Court distinguished this situation from that contemplated by Resolutions 1368(2001) and 1373(2001). The weight which the Court attached to the fact that the attacks emanated from territory under control of the victim state indicates that it did not close the door on the possibility of self-defence in response to an attack by an irregular force, at least when it emanates from territory outside the control of the victim state. Moreover, by distinguishing the case from the 2001 Security Council Resolutions, the Court appears to affirm the interpretation of those resolutions as acknowledging the right of self-defence against a nonstate actor. Indeed, Judges Buergenthal, Higgins and Kooijmans all criticized the majority opinion for construing the right of self-defence too narrowly. They considered that it could encompass action in response to an armed attack by an irregular force.90 In Congo v. Uganda the Court noted that it had found no need to respond to the contentions of the parties as to whether, and under what conditions, contemporary international law provides for a right of self-defence against large-scale attacks by an irregular force.91 In this it conceded that the matter was still open. This only reinforces the need for International Institute of Humanitarian Law in co-operation with the George C. Marshall Center San Remo, 24-26 September 2002 p. 60 (‘San Remo’) at p. 60. 86 Preambles to Security Council res. 1368(2001) and 1373(2001); Separate Opinion of Judge Simma in Congo v. Uganda, loc. cit. n. 49, para. 11; Reisman (2006) 537; Murphy (2005) 63; R. Wedgwood, ‘The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense’ 99 AJIL (2005) p. 52, at 58; Müllerson, loc. cit. n. 3 at pp. 177-178; T.M. Franck ‘Terrorism and the Right of Self-Defense’, (2001) 95 AJIL 839, p.840; Dinstein, loc. cit. n. 56, at p. 206. 87 M. Byers ‘Terrorism, the Use of Force and International Law after 11 September’ (2002) 51 ICLQ 401, pp. 406-407; E.P.J. Myjer and N.D. White, ‘The Twin Towers Attack: An Unlimited Right to Self-Defence?’ 7 Journal of Conflict and Security Law (2002) p. 1, at 7; M.E. O’Connell, ‘Enhancing the Status of Non-State Actors Through a Global War on Terror?’ 43 Columbia J. of Trannational L. (2004-2005) p. 435. 88 Wall Advisory Opinion, loc. cit. n. 36, para. 136. 89 Wall Advisory Opinion, loc. cit. n. 36, para. 139 90 ibid., Declaration of Judge Buergenthal, para. 6l, separate opinions of Judges Higgins, para. 33, and Kooijmans, para. 35; S.D. Murphy ‘Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?’ (2005) AJIL 66-7 91 Congo v. Uganda, loc. cit. n. 49, para. 147. The court found no need to do so because it had found ‘that the legal and factual circumstances for the exercise of a right of self-defense by Uganda against the DRC were not present’. Yet other than the absence of notification to the SC as required by Article 51, the only circumstances found not present were precisely the inability to attribute the actions of the irregular force to the DRC (or to Sudan). The Court therefore implicitly gives a response, whereby attacks by irregular forces do not give rise to a

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caution in any categorical conclusions from the Wall Advisory Opinion. Judge Kooijmans reiterated his position that a large-scale attack by irregular force can qualify as ‘armed attack’’ for the purposes of Article 51.92 Judge Simma shared this view.93 Security Council Resolution 1701(2006) does not take an express position with regard to the lawfulness of Israel’s actions, yet it treats Israel’s use of force differently from Hizbollah’s.94 It calls for ‘the immediate cessation by Hizbollah of all attacks and the immediate cessation by Israel of all offensive military operations”. The differential use of ‘all attacks’ and ‘offensive military operations’ suggests that at least some of Israel’s acts were perceived as lawful by the Council. This necessarily implies that the right of self-defence does include action against an irregular force. If an act by an irregular force is not an ‘armed attack’ for the purposes of Article 51, it does not trigger the right to self-defence. It is nothing more than a criminal act against which the victim state may carry out law enforcement measures.95 The question is then how the victim State can enforce the law if the irregular force is operating from outside its territory. In the cases of both the Israeli action in the West Bank and the US action against Al Qaeda, law enforcement measures were technically possible. Israeli forces in the West Bank are entitled to carry out law enforcement measures under the law of occupation. The US could take law enforcement measures against Al Qaeda on Afghani soil because it considered itself entitled to send its forces to act there in self-defense against Afghanistan. By analogy, for Israel to be able to carry out law enforcement measures against Hizbollah, it needs to establish a right of self-defence against Lebanon,96 otherwise it had no jurisdiction to act in the latter’s territory.97 Regardless of the approach adopted vis-à-vis the capacity of non-state actors to commit an ‘armed attack’ within the meaning of Article 51, however, the responsibility of the state from which the attack emanated (the ‘host’ state) must be examined. 3.2 Attribution of Responsibility for the Attack to Lebanon Lebanon’s role with regard to the attack on Israel is important in two respects. First, if an act of an irregular force does not constitute an armed attack, Israel’s right to selfdefence depends on the existence of Lebanese responsibility for the attack98. Second, even if Israel has a right of self-defence directly against Hizbollah, the question remains whether Lebanon’s responsibility as a host State justifies action on its territory. right of self-defence. Judge Kooijmans in a separate opinion suggested that the ‘circumstances’ are the possible existence of a minimum threshold for state support for terrorists that qualifies as an armed attack. He too finds that the Court implicitly rejects the possibility of self-defence in response to action by an irregular force, paras. 20-25. There is no doubt that the Court has conflated the question of the extent of involvement of a host state with that of whether self-defence is contingent upon an armed attack by a state. 92 Congo v. Uganda, loc. cit. n. 49, Separate Opinion of Judge Kooijmans, paras. 26-31. 93 ibid., Separate Opinion of Judge Simma, paras. 8-15. 94 SC res. 1701(2006) operative para. 1. 95 McDonald (2002), loc. cit. n. 85 at p. 60. 96 infra 3.2 Attribution of Responsibility for the Attack to Lebanon. 97 It could ask Lebanon to cooperate through criminal law-enforcement measures. The inadequacy of such measures to counter Hizbollah needs little elaboration. 98 Another alternative is that Iran or Syria might be responsible for Hizbollah’s acts. Even if such responsibility is established, the question remains whether Israel may act on Lebanese territory in defence against an Iranian or Syrian attack. The analysis of this issue might resemble the analysis whether Israel may act on Lebanese territory in defence of an attack for which Hizbollah but not Lebanon is responsible, a matter considered infra at 4.1 Acting in Self-Defence against a Non-Assisting Host state.

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In its letter to the Security Council99 Israel attributed responsibility to Lebanon: Responsibility for this belligerent act of war lies with the Government of Lebanon, from whose territory these acts have been launched into Israel… The ineptitude and inaction of the Government of Lebanon has led to a situation in which it has not exercised jurisdiction over its own territory for many years…Today’s act is a clear declaration of war… Israeli Prime Minister Olmert declared:100 This morning's events were not a terrorist attack, but the action of a sovereign state that attacked Israel for no reason and without provocation. The Lebanese Government, of which Hizbullah is a member, is trying to undermine regional stability. Lebanon is responsible and Lebanon will bear the consequences of its actions. On the same day Minister of Foreign Affairs Livni said:101 Hizbullah is a terrorist organization which is part of the Lebanese Government. The international community, including the Security Council, has demanded, repeatedly, time and again, that the government of Lebanon dismantle Hizbullah. Lebanon has failed to act and today’s aggression is the result. Israel views the government of Lebanon as responsible for today’s unprovoked aggression. These statements present two different legal propositions. One, that Lebanon is responsible for the attack because Hizbollah takes part in its Government; the other, that Lebanon is responsible for the attack because it had not prevented Hizbollah’s action. Soon afterwards, the Israeli Government decided to regard itself in conflict with Hizbollah alone and not with Lebanon.102 By 16 July, Prime Minister Olmert was referring to the attack in terms of terrorism and to Lebanon as a pawn in the hands of foreign states. He emphasized that Israel was not fighting Lebanon but only the terrorist element therein.103 Nonetheless, the next day he stated:104 Even if last Wednesday's criminal attack against an IDF patrol was carried out without the consent of the Lebanese government and without the assistance of its military, this does not absolve it of full responsibility for the attack which emanated from its sovereign territory. These statements ostensibly relieve Lebanon from direct responsibility for the armed attack. Nonetheless, the Prime Minister maintained that Lebanon is fully responsible for the attacks because it allowed them to take place from its territory. 99

supra n. 5.

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Press Conference with Prime Minister Olmert, 101 Statement by FM Livni on Hizbullah attack from Lebanon 12 July 2006 . 102 Chief Military Advocate Avichai Mandelblit, International Law Forum, Jerusalem 3 January 2007 (notes on file with the author). It has been hinted informally that this was in response to pressure from the US, and not because of any change in Israel’s legal position. 103 Cabinet Communique, 16 July 2006, . 104 supra n. 65.

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A state is internationally responsible for a wrongful act if the act was carried out by its organs or if the act can be attributed to it by virtue of the link between the perpetrators and the State.105 The following is an analysis whether Lebanon can be held responsible fo the armed attack, as Israel claimed at least at the outset. 3.2.1 Lebanon’s Responsibility for the Attack on the Ground of Hizbollah’s Exercise of Governmental Authority Hizbollah does not have the formal status of an organ under Lebanese law.106 Nonetheless, it has been claimed that it is a de facto organ of Lebanon because of its participation in the Lebanese Government and Parliament.107 In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (‘Bosnia v. Serbia’) the ICJ said that an entity may be regarded as a de facto organ of a state if it is completely dependent on it. 108 Under this test, Hizbollah is clearly not a de facto organ of Lebanon. An argument was also put forward that Hizbollah is a de facto organ of Lebanon because under the Lebanese state’s own constitutional framework it is carrying out national defence task. This was argued by Hizbollah members detained in Israel, in an attempt to establish their status as prisoners of war under Article 4A(1) of the third Geneva Convention. The Israeli District Courted rejected the argument. Its decision was upheld by the Supreme Court sitting as a Court of Appeals.109 Another possibility that must be explored is that Hizbollah’s acts are attributable to Lebanon on the ground that Hizbollah exercises governmental authority, namely national defence.110 This matter highlights the uniqueness of the situation in Lebanon, where a selfappointed militia carries out governmental tasks. On the one hand the Lebanese Government has effectively, but not formally by law111 outsourced national defence to a paramilitary group. Whether it did so enthusiastically out of free choice or reluctantly out of political weakness is immaterial once it has endorsed the situation, as it has done numerous 105

International Law Commission Draft Articles on state Responsibility for Internationally Wrongful Acts Report of the International Law Commission on the work of its Fifty-third session (2001) UN Doc. A/56/10 (‘ILC Draft Articles’) Draft Articles 4-11. 106 Cf. ILC Draft Article 4(2). 107 R. Sabel, ‘Hezbollah, Israel, Lebanon and the Law of Armed Conflict’ Jurist 25 July 2006. . 108 General List. No. 91, Judgement of 26 February 2007 para. 397. 109 The Disctric Court noted stated that Hizbollah was at best a militia under Art. 4A(2) of the Third Geneva Convention. State of Israel v. Hussein ben Ali Sleiman and Two Others, Criminal Requests (Nazareth) 2743/06, Decision of 19 October 2006, upheld in Mhamad Abdulhamud Srur and Two Others v. State of Israel Various Criminal Requests 8780/06, 8984/06, Supreme Court sitting as a High Court of Appeals, Decision of 20 November 2006. The Commission of Inquiry appointed by the Human Rights Council also referred to Hizbollah’s participation in Government and Parliament, and to the status of its military wing as ‘an armed group, a militia, whose conduct and operations enter into the field of application of article 4, paragraph 2(b), of the Third Geneva Convention of 12 August 1949’ (paras. 56-57, sic.). This was in the context of determining whether the conflict was international or not. In Bosnia v. Serbia the ICJ emphasized that the standard of link between an irregular force and a State required for establishing the character of a conflict is different than that required for establishing international responsibility, supra n. 108, para. 403-405. The same distinction would apply between the standard for POW status and the status for international responsibility. 110 ILC Draft Article 9. Another question is whether the exercise of governmental functions by Hizbollah is generally called for, as required by Draft Article 9. This is the crux of the matter, of course. The Lebanese position, advocated more enthusiastically by Hizbollah than by the Government but nonetheless agreed by the two, is that defence of the border with Israel is vital against Israel’s aggression. Israel refutes this and regards Hizbollah (and its precursors in the 1970s) as the source of conflict in the area 111 Cf. ILC Draft Article 5.

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times,.112 including with regard to the 2006 conflict.113 Given the extent of the Lebanese Government’s acquiescensce or even endorsement of Hizbollah’s presence in southern Lebanon, it is difficult to characterize Hizbollah as acting ‘in the absence or default’ of official authorities, as required under Article 9 of the ILC’s Articles on State Responsibility. On the other hand, the Government also did not actively delegate its authority to Hizbollah. Moreover, account has to be taken of the fact that the 12 July attack was in excess of whatever tacit permission Hizbollah has received from the Government.114 This illustrates the need to interpret the various categories of attribution with elasticity if one were to seek to apply them to the present case. 3.2.2 Lebanon’s Responsibility for the Attack on the Ground that it has Endorsed It The Lebanese Government’s immediate and express denial of responsibility and disavowment of Hizbollah’s acts appears to preclude any attribution of responsibility to Lebanon on the grounds of endorsement.115 Yet other statements, while not endorsing the 12 July attack, clearly endorsed Hizbollah’s presence and activities in general. President Lahoud in a statement at the 61st Session of the UN General Assembly hailed the Lebanese people as it ‘embraced its national resistance, whose men faced occupation forces with epic valor, preventing their advance…’116. He called upon the General Assembly to differentiate between him who defends his country against Israeli aggression and occupation and strives to liberate his countrymen from decades of unlawful imprisonment and those elements who perpetrate acts of wanton slaughter against their countrymen and others equally. This can be read as a direct endorsement of the 12 July attack. President Lahoud also saluted ‘the fallen soldiers of peace who will hence share their obituary with that of our brave army soldiers and of our valiant resistance fighters’.117 These statements, if not an endorsement of the initial 12 July attack, endorse both Hizbollah’s objectives and its response to Israel’s military campaign. It is a strained argument that Lebanon can on the one hand acquiesce in the general presence and activity on its territory of an irregular force, and at the same time avoid responsibility for acts carried out by that force. Once again, the circumstances do not fall neatly into existing categories of attribution. 3.2.3 Lebanon’s Responsibility for the Attack on Ground that it had not Prevented it A state may be held responsible for the acts of an irregular force (that is not its organ) if its links with it are sufficiently close. Israel has long argued (with a few other states) that by harbouring terrorists, the host state becomes complicit in the armed attack that they 112

E.g. the ministerial statement issued following the 2005 elections by the newly-elected Government endorsed Hizbollah’s right to possess military weapons to carry out a national resistance against the perceived Israeli occupation of Lebanese territory HRC Commission of Inquiry, supra n. 23, para 57. 113 , Prime Minister Siniora on 15 July 2006 commended the Lebanese people as it ‘embraced its national resistance…’ Speech of Prime Minister Siniora to the Lebanese People on 15 July 2006, available on the website of the Lebanese UN Mission, (‘Siniora Speech’). 114 The provision that excess of authority or contravention of instructions do not relieve a state of international responsibility applies to organs and persons empowered to exercise elements of governmental authority, ILC Draft Article 7. It does not cover persons acting in the absence or default of government. 115 Cf. ILC Draft Article 11. 116 A/61/PV.14 (21 September 2006) p. 8. 117 Ibid., p. 9.

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carry out.118 This proposition is based on the obligation of every state to take all reasonable measures to prevent irregular forces from acting from its territory, embodied in the 1970 Declaration on Principles of Customary International Law concerning Friendly Relations and Cooperation among States, which provides:119 Every state has the duty to refrain from… or acquiescing in organized activities with its territory directed towards the commission of [terrorist acts in another state], when the acts referred to in the present paragraph involve a threat or use of force. Specifically with regard to the 2006 conflict, Israel invokes the non-compliance of Lebanon with Resolution 1559(2004), which calls for the deployment of Lebanese Armed Forces to all parts of the country, in particular the South, and the disarming of militias,120 as a breach of the obligation of due diligence; a breach which enabled Hizbollah to carry out its attack.121 The difficulty with this argument is that it conflates responsibility for non-prevention with responsibility for the act itself. There is no dispute that a state which fails to exercise due diligence is in violation of the obligation to prevent intervention and unlawful use of force from its territory. The argument that such a negligent state becomes responsible for the act of an irregular force itself, namely for the armed attack, has in the past been rejected,122 and a higher standard of control was demanded for attributing the attack itself to the state.123 In Nicaragua the ICJ adopted an exacting test of ‘effective control’,124 requiring direction and control of specific operations.125 In Tadic, the ICTY required a lower threshold of ‘overall control’, although with regard to an armed group operating outside the territory of the purportedly controlling State, a more extensive involvement was required, that of ‘generally directing or helping plan their actions’.126 In Bosnia v. Serbia the ICJ reiterated the ‘effective control’ test and distinguished between the test for international responsibility and the test for the character of the conflict, which was the subject of the Tadic judgement.127 At any rate, neither test provides a ground for attributing Hizbollah’s actions to Lebanon, as there is no claim that Hizbollah acted under the Lebanese Government’s control or instruction, generally or with regard to the specific attack. The difference between the two types of responsibilty – for non-prevention and for the attack itself – became blurred following 9/11. The US held Afghanistan directly responsible for the armed attack by virtue of harboring Al Qaeda and refusing to surrender Bin Laden. It later elaborated this position in the Bush Doctrine, which equates the state harboring the terrorists with the terrorists themselves.128 This once again brought to the fore 118

B.A. Feinstein, loc. cit. n. 67; O’Brien, loc. cit. n. 67, at pp. 433-435; Levenfeld, loc. cit. n.70, at pp. 3-5. GA res. 2625(XXV) Principle 1 para. 9. 120 Operative paras. 3, 4. 121 S/PV.5489 (14 July 2006) p. 6. Salem argues that had Lebanon taken control of the south in 2000, the 2006 conflict would not have erupted. Salem, loc. cit. n. 15, at p. 15. 122 A. Cassesse, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ 12 (2001) European Journal of International Law 993 123 ILC Draft Article 8. 124 Nicaragua, loc. cit. n. 46, para. 115. 125 The Prosecutor v. Dusko Tadic, IT-94-1-A, ICTY Appeals Chamber (Judgment of 15 July 1999) (Merits) 38 ILM (1999) p. 1518 (‘Tadic’),, at para. 114. 126 ibid., at para. 138. The difference between the two tests is therefore not as great as it seems, given that Nicaragua also concerned an armed group operating outside the controlling State. 127 Bosnia v. Serbia, supra n. 108, paras. 403-405. 128 The 2006 National Strategy for Combating Terrorism announced in September 2006 repeats the same principle: ‘The United States and its allies and partners in the War on Terror make no distinction between those who commit acts of terror and those who support and harbor terrorists. Any government that chooses to be an 119

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the debate on the extent to which a state harbouring or tolerating terrorists could be regarded as responsible for their acts.129 Some consider the Bush Doctrine an enthusiastic adoption130 or vindication of the old argument.131 Others reject it as a hasty excess of law.132 Still others concede that perhaps self-defence is available against a state harboring the terrorists, at least if the attack had already been committed.133 Resolution 1373(2001) establishes specific obligations of preventing terrorist acts. Against this background, is there a basis for adopting a different standard for establishing responsibility of a host state for an armed attack? The difference between responsibility for non-prevention of an act and responsibility for its commission is ordinarily one of degree only. In the context of use of force, however, it is a difference of quality. A state responsible for an armed attack is vulnerable to an act of self-defence. A state responsible only for not preventing an armed attack is not, by virtue of this responsibility alone, vulnerable to an act of self-defence. If non-prevention is equivalent to commission of the attack, the victim State may respond with force against the host State even if the latter is responsible only for hosting the irregular force. This appear an expansion of the existing laws of international responsibility and use of force. However, the same result may be reached from within existing law if, as explored below,134 a victim state may act against an irregular force on the territory of a host state even in the absence of responsibility for the attack on the part of that state. Even if the due diligence standard is accepted135 for examining Lebanon’s responsibility for the attack itself and not just for not preventing it, Israel must show that Lebanon was capable of acting against Hizbollah but did not do so.136 Israel vehemently maintains that Lebanon is capable of taking control over its entire territory. Due diligence requires a state only to take ‘reasonable measures’. These probably do not include disbanding the irregular force at the cost of risking chaos and civil war, one of the reasons for the Lebanese’s failure to disband Hizbollah to date. Consenting to intervention by the victim state may be a reasonable measure, depending on the circumstances. In the event, if confrontation of the Lebanese Government with Hizbollah would have led to civil war, so would have allowing Israel to intervene. Accordingly it may be argued that in the

ally of terror has chosen to be an enemy of freedom, justice, and peace’. . Oussama Damaj warns against the atmosphere in which ‘if you do not do what you are asked to do, that means you are against us, and if you are against us that means you are a terrorist or at least you symphathize with terrorists’, ‘The Problem of Responding to Terrorism’ San Remo supra n. 85, at p. 147. 129 J. Somer, ‘Acts of Non-State Armed Groups and the Law Governing Armed Conflict’ ASIL Insight 24 Aug 2006 ; T.M. Franck Recourse to Force (2002), at pp. 64-65; M. Bothe, ‘Terrorism and the Legality of Pre-emptive Force’ (2003) 14 EJIL p. 227 at 233. 130 R.P. Barnidge Jr ‘States’ Due Diligence Obligations with Regard to International Non-State Terrorist Organisations: The Heavy Burden States Must Bear,’16 Irish Studies in International Affairs 120 (2005). 131 B.A. Feinstein, ‘A Paradigm for the Analysis of the Legality of the Use of Armed Force Against Terrorists and states that Aid and Abet Them’ 17 Transnational Lawyer (2004) p. 51 at 59. 132 A. Cassesse, loc. cit. n. 122; O’Connell 2004-2005 loc. cit. n. 87, at p. 449; J.D. Paust, ‘Use of Armed Force against Terrorists in Afghanistan, Iraq and Beyond’, 35 Cornell JIL (2001-2002) 533, p. 540; S.R. Ratner, ‘Jus ad Bellum and Jus in Bello after September 11’, 96 AJIL (2002) p. 905 at 908. 133 Byers , loc. cit. n. 87 at pp. 408-409. 134 See 4.1 Acting in Self-Defence against a Non-Assisting Host state. 135 Bowett rejects the notion that there is absolute liability, loc. cit. n. 64, at p. 20. 136 Congo v. Uganda, loc. cit. n. 49, para. 301. For a contrary position see Judge Kooijmans’ separate opinion, para. 82.

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circumstances, it was not possible to demand of the Lebanese Government to disband Hizbollah. 3.2.4 Conclusion Analysis of each of the bases for attachment of international responsibility to Lebanon indicates that the relationship between Hizbollah and the Lebanese Government is such that does not fall neatly into any of the ordinary categories of attribution. The ocnclusion may be that Hizbollah’s action cannot be attributed to Lebanon. On the other hand, the categories are not set in stone. While each one alone may not give rise to Lebanese responsibility, cumulatively they may have an this effect. 3.3 The International Response Those states that regarded the incidents of 12 July as an armed attack appeared to distinguish between Hizbollah and Lebanon, and to exonerate Lebanon from responsibility for the attack.137 Many, in fact, emphasized the need to strengthen and support Lebanon in controlling its territory.138 Some added Lebanon’s failure and obligation to prevent Hizbollah activity from its territory.139 Security Council Resolution 1701(2006) follows the same line. It refers to Hizbollah as a foreign force operating without the consent of the Lebanese Government140 and emphasizes141 the importance of the extension of the control of the Government of Lebanon over all Lebanese territory in accordance with the provisions of Resolution 1559(2004) and Resolution 1680(2006), and of the relevant provisions of the Taif Accords, for it to exercise its full sovereignty, so that there will be no weapons without the consent of the Government of Lebanon and no authority other than that of the Government of Lebanon. By implying that Lebanon had not had control over its territory and that Hizbollah was acting outside the Lebanese Government’s authority, the Resolution releases Lebanon from responsibility for the attack. At the same time, states considered Israel to have a right to self-defence.142 In other words, the notion that an attack by an irregular force gives rise to a right of self-defence even

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The UN Secretary-General commented on this: ‘Moreover, any analogy with Afghanistan under the Taliban is wholly misleading. Mr. Siniora’s Government clearly espouses democratic values. It deserves, and must receive, all possible support from the international community’ S/PV.5492 (20 July 2006) p.3. 138 e.g. Greece, S/PV.5493 Resumption 1 (21 July 2006) p. 3; Peru, ibid., p. 4; UK, ibid., p. 5, Denmark: ibid., p. 7; France, ibid., p. 11; Finland on behalf of the EU and aligned states, ibid., p. 16; Chile, ibid., p. 35; US, Press Briefing by Secretary of state Condoleezza Rice and National Security Advisor Steve Hadley 13 July 2006 . 139 Greece and France: S/PV.5489 (14 July 2006) p. 17. 140 SC res. 1701(2006) operative para. 8. 141 ibid., operative para. 3. 142 supra n. 138 and also France, S/PV.5489 (14 July 2006) p. 7; US, S/PV.5493 (21 July 2006) p. 17; Slovakia, ibid., p. 19; Russia: S/PV.5493 Resumption 1(21 July 2006) p.2; Ghana: ibid., p. 8; Argentina: ibid., p. 9; Switzerland: ibid., p. 18; Brazil: ibid., p. 19; Canada: ibid., p. 39; Turkey: ibid., p. 28; Guatemala: ibid., p. 41; Norway: ibid., p. 23. Prior to that debate, the G-8 statement noted: ‘It is also critical that Israel, while exercising the right to defend itself, be mindful of the strategic and humanitarian consequences of its actions’; Statement by the Council of the European Union on the Middle East, 17 July 2006,

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in the absence of any state responsible appears to have gained considerable ground. The rejection by other states of Israel’s right to self-defence was based on a different reading of the conflict, according to which the actions of Hizbollah are not unlawful. It does not bear on the doctrinal question of self-defence in response to acts of irregular forces. To summarize, no one, other than Israel, regarded Lebanon as responsible for the attack directly or because it did not prevent it. Nonetheless, there was wide acknowledgement of Israel’s right to self-defence. This supports the growing recognition of a right to self-defence against an armed attack by an irregular force not linked to any state. 4. THE EXERCISE OF THE RIGHT TO SELF-DEFENCE For military action to be a valid act of self-defence, it must be necessary and proportionate to the armed attack.143 The evaluation of compliance with either requirement depends on the interpretation of the right to self-defence. In the case of self-defence against an irregular force, a preliminary issue that must be addressed is the permissibility of operating in the territory of the host state when it is not responsible for the attacks. 4.1 Acting in Self-Defence against a Non-Assisting Host state In a case of inter-state armed attack, the right of self-defence of the victim state implies permission to infringe upon the attacker’s territorial inviolability. An armed attack by an irregular force operating from the territory of a state not responsible for its acts presents a challenge in this respect. Clearly the victim state must only target the irregular force.144 But is it entitled to operate against the irregular force on the territory of a host state that is itself not responsible for the attack and has not given its consent to such an operation? Indeed, one of the difficulties in acknowledging the right to self-defence against an irregular force is that it implies a right to use some measure of force in the territory of the host State.145 One approach is that in the absence of a host State’s responsibility for the armed attack, there is no right to self-defence on its territory. Gray argues that states that have carried out actions against irregular forces on the territory of host states have tended to accuse the host states for the attacks, apparently on the view that without the host State’s involvement there can be no action of self-defence on its territory. The same view appears to have guided the US in attaching responsibility to the Taliban and Afghanistan following 9/11.146 It might also explain the Israeli Prime Minister's statement, in which he attached direct responsibility for the attacks to Hizbollah, but at the same time maintained that Lebanon remained responsible.147 This approach entirely rejects the possibility of action in the territory of a host state unless it is responsible for the attack.148 O’Connell adds, however, . 143 Oil Platforms, loc. cit. n. 49, para. 51. Whether it must also be immediate is disputed, but in the circumstances not an issue, given that Israel responded within hours of the 12 July attack. 144 See also Wedgwood 1999, loc. cit. n. 76, at p. 566. 145 Unless the irregular force is operating from the high seas. 146 Gray, loc. cit. n. 72, at p. 99; Byers , loc. cit. n. 87 at pp. 408-409, Myjer and White, loc. cit. n. 87, at pp. 7-8. 147 Address to the Knesset by Prime Minister Ehud Olmert 17 Jul 2006 supra n. 103. 148 Byers, loc. cit. n. 87 at pp. 408-409; Paust, loc. cit. n. 132, at p. 539. However, Paust justifies the action in Afghanistan by the fact that the Taliban Government was not recognized 539-540. This is irrelevant. Nonrecognition of a government does not affect the rights of the state. This is also the import of Congo v. Uganda, loc. cit. n. 49, confirmed in Judge Koroma’s Declaration, para. 9.

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that in the case of a failed host state the victim state should still have a right to self-defence, despite the absence of responsibility on the part of the host state.149 A proactive approach appears to be gaining ground, which advocates that even in the absence of responsibility for the armed attack, the host state might lawfully become vulnerable to military action ‘incidentally’, if it does not suppress the irregular force’s activity. Wedgwood argues that if a state permits the use of its territory for terrorist attacks when it could shut those operations down, and refuses requests to take action, it cannot expect to insulate its territory against measures of self-defence.150 Simma and Dinstein add the victim state’s right to act in self-defence in the territory of a host state even if that state is not unwilling to take action but too weak to do so.151 The emphasis in this approach is on the genuine attempt to suppress the irregular force’s activity. In practice, it allows the victim state to operate on the territory of the host state in any case where the host state does not act against the irregular force for whatever reason. Under the first, conventional, approach it appears that Israel had no right to operate in Lebanese territory, as Lebanon was not responsible for the attacks, nor was it a failed state. Lebanon’s situation resembled that of Tunisia, attacked by Israel in 1986 because of PLO activities. At the time, even the US condemned Israel’s action.152 This approach was expressed with regard to the 2006 conflict by South Africa, which commented: ‘We do not believe that an entire nation can be attacked because of tensions with Hizbollah’, apparently rejecting completely Israel’s claim to be acting in self-defence.153 Under the proactive approach, Israel could operate against Hizbollah on Lebanese territory if Lebanon did not itself take action for whatever reason. Interestingly, states that acknowledged Israel’s right to self-defence took it for granted that Israel would operate on Lebanese territory. This may be explained by the lowering of the threshold for responsibility under the Bush Doctrine, which effectively regards any state tolerating terrorists as responsible for their acts. This moves Lebanon into the category of internationally-responsible states, making not only action on its territory permissible, but Lebanon could even be the direct target for self-defence. Accordingly, a US House of Representatives resolution154 expressed its support for …Israel’s right to take appropriate action to defend itself, including to conduct operations both in Israel and in the territory of nations which pose a threat to it, which is in accordance with international law, including Article 51 of the United Nations Charter; In the alternative, the growing emphasis on the obligation of due diligence to prevent crossborder incursions lends support to the notion that the responsibility for failure to exercise 149

O’Connell (2004-2005) loc. cit. n. 87, at p. 450 Wedgwood 1999, loc. cit. n. 84, at p. 565. 151 Ibid.; Dinstein, loc. cit. n. 56, at pp. 244-5; B. Simma, ed., The Charter of the United Nations – A Commentary (2nd edn 2002) Vol 1, p. 802 para. 36 quoted with approval in Kateka Dissenting Opinion in Congo v. Uganda, loc. cit. n. 49, para 37. The Caroline incident confirms the customary permissibility of resort to force under such circumstances. 152 O’Connell 2004-2005 loc. cit. n. 87, at p 450. M.E. O’Connell, ‘Proportionality and the Use of Force in the Middle East Conflict’ Jurist 21 July 2006 . 153 S/PV.5493 Resumption 1 (21 July 2006) p. 44. Other states also criticised the effect of Israel’s action on Lebanese, as will be discussed below. However, South Africa exceptionally did not mention the right to selfdefence, which other states acknowledged. 154 House of Representatives Res. 921 (20 July 2006) para. 8. 150

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such diligence renders the state ‘incidentally’ susceptible to military response without needing to make it directly responsible for the attack. 4.2 Necessity If self-defence only applies to repelling an attack in actual progress, then once a specific attack has ended by the attacker's own volition, there is no necessity for self-defence and any further military action constitutes reprisals. If, on the other hand, a series of incidents is also regarded as an attack which gives rise to a right of self-defence, then the prevention of future attacks is equivalent to the repelling of an ongoing one. Under this latter interpretation Israel’s response could be considered prima facia necessary. One aspect of the requirement of necessity of the military response is that the state attacked did not, in the particular circumstances, have had any means of halting the attack other than recourse to armed force.155 This does not inescapably mean that Israel should have negotiated with Hizbollah before resorting to force. Leaving aside the question whether the exhaustion of peaceful means includes negotiations with an irregular force that does not abide by basic principles of international humanitarian law (e.g. distinction), clearly there was no realistic prospect of direct negotiations leading to termination of the immediate attack as it was perceived by Israel (i.e. by release of the soldiers and abandonment of the use of force). Another peaceful measure Israel could theoretically have taken was to request Lebanon to intervene to secure the release of the soldiers. Given the relationship between Lebanon and Hizbollah, and in view of previous incidents of abduction, the efficacy of such an approach is doubtful.156 As the international community, acting together through Security Council Resolution 1559(2004), failed to prompt Lebanon to take a strong stance against Hizbollah, there was no reason to assume that a direct Israeli request would achieve this. The requirement of necessity also entails that the forcible measure taken was prima facie capable of achieving this goal157. Doubts have been raised as to the effectiveness of Israel’s response in this respect. In the Security Council debate, Ghana commented: ‘The use of force to combat terrorism has often proved to be counterproductive’.158 Many states repeated the usual mantra that peace in the Middle East cannot be achieved through force.159 The goal they set, it must be noted, was far more ambitious than that of Israel, which were, in the immediate phase, the return of the abducted soldiers, ending the threat posed by Hizbollah (namely the bombardment of civilian communities) and the removal of Hizbollah from the area. In terms of realistic prospects of achievement, the first two goals can be regarded as necessary.

155

Ago , para. 120, Oil Platforms, loc. cit. n. 49, para. 76. Amal Saad-Ghorayeb in ‘Hezbollah's Role in Lebanon's Government’, NPR 13 July 2006 ?storyId=5554992>. 157 M.E. O’Connell ‘Necessity, Proportionality and the Use of Force by States, By Judith Gardam’ (book review) 100 AJIL (2006) p. 973 at 974. 158 S/PV.5493 Resumption 1 (21 July 2006) p. 8; On the tendency to adopt a bipolar approach to combating terrorism see Müllerson, loc. cit. n. 3, at pp. 158-162 159 Brazil: ‘Unilateral and other types of nonnegotiated solutions are not likely to bring about peace, but only precarious truces that are broken in bloody conflicts such as the one we are witnessing today. The international community must not remain passive before the deterioration of the conflict and the destruction of Lebanon as a viable nation’ S/PV.5493 (21 July 2006) p. 19; Norway: ‘A peaceful solution to the situation in the Middle East cannot be found through military action. Only a political process and negotiations involving all parties can yield a comprehensive and lasting peace’ ibid., p. 23. 156

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4.3 Proportionality The standard for proportionality depends on the scope of the right to self-defence. If the right is limited to repelling an ongoing attack, a proportionate response should be similar in scale to the armed attack.160 If the right also includes the prevention of future attacks, then proportionality should be measured against the pending threat, which can be projected from previous attacks.161 The constant firing of rockets on civilian Israeli communities gave a reasonably good idea of the threat at issue. The asymmetry between the immediate trigger of the conflict and the scale of Israel’s response does not by itself indicate the disproportionality of Israel’s response. Instead the objectives of Israel’s campaign must also be evaluated. If they are excessive with regard to the threat, or if the means to achieve them were excessive, only then the requirement of proportionality was not complied with. The special circumstances, namely that Lebanon was not held responsible for the attacks, yet was inevitably affected by the Israeli response, suggest that a particularly stringent test might be appropriate in assessing the proportionality of the response. Israel was explicit from the start that the immediate goal of its military action was the return of its abducted soldiers162 but that this was not the only goal. It also aimed to end the threat posed by Hizbollah,163 declaring on 16 July: ‘It must be clear that Israel will not return to the status quo that prevailed before last Wednesday; this situation was intolerable from the outset’.164 Prime Minister Olmert outlined the objectives of the Israeli military action:165 And in Lebanon, we will insist on compliance with the terms stipulated long ago by the international community…: The return of the hostages…; A complete cease fire; Deployment of the Lebanese army in all of southern Lebanon; Expulsion of Hizbollah from the area, and fulfilment of United Nations Resolution 1559... We will search every compound, target every terrorist who assists in attacking the citizens of Israel, and destroy every terrorist infrastructure, everywhere... Israel will not agree to live in the shadow of missiles or rockets against its residents. Minister of Foreign Affairs Livni added that166 ‘[there] is comprehensive agreement that a cease-fire alone is not enough, but also the unconditional return of the [abducted] soldiers and the full implementation of UN Security Council Resolution 1559, in order to keep Hizbollah from establishing itself as the regional provocateur’.

160

Oil Platforms, loc. cit. n. 49, para. 77; Dinstein, loc. cit. n. 56, at p. 225. ILC Yrbk, loc. cit. n. 69, para. 121, on the right to take action ‘to put an end to this escalating succession of attacks’. 162 There are those that claim that Israel’s military action had been in the planning for a long time and that the abduction was only a peg on which to hang the launch of a military offensive. Whether a state was spontaneous or whether it was yearning for an excuse is irrelevant to the legality of its action. Either an action is permissible or it is not. Its necessity and proportionality depend on objective criteria (even if those are subjectively assessed) and not on the state of mind of politicians. That apart, the Israeli operation, which is generally regarded as a military and political failure, casts doubt on whether any preparations had actually taken place in advance of the offensive. 163 Statement of the UN Secretary-General in Security Council Debate S/PV.5492 (20 July 2006) p. 3. 164 Cabinet Communiqué 16 July 2006, supra n. 103. 165 Address to the Knesset by Prime Minister Ehud Olmert 17 Jul 2006 supra n. 103. 166 FM Livni meets with Special UN Team, 18 July 2006 . 161

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Israel set a number of different objectives. Two of them, the return of the abducted soldiers and the cessation of Hizbollah rocket firing on civilian communities, respond to the immediate threat on Israel. A third objective was the removal of Hizbollah from the border area and the enforcement of the fulfilment of Security Council Resolution 1559(2004). Since enforcement of Security Council resolutions is not as such within the mandate of any single state, action justified by pursuit of only this objective appears to exceed the scope of permissible military action. Preventing Hizbollah from ‘establishing itself as the regional provocateur’ is also problematic as an objective of self-defence because it goes far beyond neutralizing Hizbollah’s immediate military power, and suggests long-term political objectives.167 Another objective attributed to Israel, namely the restoration of its power of deterrence, might also be considered excessive use of force, since general deterrence is not clearly within the scope of permissible self-defence. Moreover, to achieve this objective, Israel would have needed to demonstrate power that is by far greater than that necessary for terminating the immediate conflict.168 The assessment whether the Israeli objectives were proportionate to the threat or in excess of it depends on the reading of the wider context of the immediate conflict. There seems to be no dispute that a comprehensive solution is necessary. The question is whether Israel may and can unilaterally achieve this objective or initiate a process towards it. Another issue was the extent of the use of force, not only its objectives. For example, had a very limited military response been taken in order to remove Hizbollah from the area, there would probably have been little criticism of the objective as such. Yet the same states that acknowledged Israel’s right of self-defence also condemned its disproportionate use of force. The disproportionality was deduced from the extent of civilian casualties and damage to infrastructure.169 This criticism appears to conflate 167

Y. Ben-Meir, ‘Israeli Government Policy and the War’s Objectives’ 9 Strategic Assessment (2006) p. 1 at pp. 2-3. Every military action is intended to generate political change. However, since Article 51 envisages Security Council action, the right of self-defence under it must be very narrow, limited to essential military necessity pending concerted international action. 168 Y. Evron, ‘Deterrence and its Limitations’, 9 Strategic Assessment (2006) p. 22. 169 Turkey: ‘What is currently taking place in the region goes far beyond self-defence’ S/PV.5493 Resumption 1 (21 July 2006) p. 28; New Zealand: ‘we cannot accept that Israel has reacted with due proportionality or caution’, ibid., p. 33; Russia: ‘…the casualties and the destruction demonstrate that the actions stated for achieving this purpose go far beyond a counterterrorist operation’, ibid., p. 2; Peru: ‘Nevertheless, [Israel] should exercise that right [to self-defense] while… avoiding the disproportionate use of force, which is causing the deaths of many innocent civilians, damaging civil infrastructure and creating a humanitarian crisis’, ibid., p. 3; France: ‘…we also condemn the disproportionate response by Israel, whose military operations are holding the Lebanese people hostage, killing large numbers of civilians and causing substantial material damage in Lebanon’, ibid., 11; Switzerland ‘…in the light of law and the facts, Switzerland considers the reaction of Israeli armed forces in Lebanon to be clearly disproportionate. The repeated air strikes of recent days against civilian targets are a serious violation of international humanitarian law’, ibid., p. 18; Brazil: ‘Brazil condemns the disproportionate use of force that has resulted in the loss of innocent lives and heavy damage to the Lebanese and Palestinian infrastructure…’, ibid., p. 19; Indonesia: ‘In view of the scale of destruction and the casualties resulting from Israel’s indiscriminate attacks and its disproportionate use of force…’, ibid., p. 25. India: ‘We have equally strongly condemned the excessive and disproportionate military retaliation by Israel, which has targeted civilian infrastructure, including the Beirut airport, and resulted in the killing and suffering of innocent civilians, including women and children’, ibid., p. 34; Chile: ‘We condemn the disproportionate measures taken by the Israeli forces, which have caused hundreds of deaths in Lebanon — a majority of them civilians…’, ibid., p. 35. Other statements are less clear about the link between the excessive use of force and the disproportionate damage to civilians. The UN Secretary-General: ‘…Israel’s disproportionate use of force and collective punishment of the Lebanese people must stop’, ibid., p. 3; Argentina: ‘In recent weeks we also expressed our serious concern about the disproportionate and excessive use of force by Israel. We reiterate our

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proportionality as a criterion for jus ad bellum, i.e. between the military action and the attack or threat, with the proportionality as a criterion for jus in bello, i.e. between the military advantage and the collateral damage to civilians and non-military objects.170 The two types of proportionality are not identical. A defensive military campaign might be proportionate to the attack, but specific tactics or attacks might contravene jus in bello.171 Thus, to conclude from excessive collateral damage that the entire operation is in excess of the right of selfdefence is erroneous. However, at issue was possibly the fact that the damage was inflicted upon a Lebanese population which was only ‘incidentally’ involved. In some cases this link between ius ad bellum and ius in bello was express. EU envoy Javier Solana stated on 19 July, following a visit to Lebanon:172 I have been in Lebanon, I have spent a night in Lebanon and I see the suffering of the people. And I do not see what that has to do with the battle against Hizbullah. The battle against Hizbullah is important. Another thing is to weaken a country. In other cases the link was less apparent. For example, Norway urged Israel ‘not to resort to disproportionate action. We must prevent the violence and conflict from expanding into neighboring areas’.173 To summarize, proportionality under the jus ad bellum weighs the intensity of military action against the attack or threat. Israel’s perception of the threat and of the means to prevent it was expansive, and its response reflected it. Controversy remains both on the objectives of the campaign and the means employed to achieve them. This links jus ad bellum and jus in bello issues. 5. EPILOGUE Following the war, the Israeli Government decided to appoint a governmental commission of inquiry ‘to look into the preparation and conduct of the political and the security levels concerning all the dimensions of the Northern Campaign which started on July 12th 2006’174. On 30 April 2007 the Winograd Commission175 issued an interim report covering the period from the IDF’s exit from Lebanon in 2000 to 17 July 2006. Although the Commission did not address questions of international law, some of its factual findings are of interest in the current analysis. In the report, the Commission acknowledged the mandate of the politicians to decide on replacing the policy of containment by one of strong response. However, it found that in deciding to go to war, the Government did not consider the whole range of options, including that of continuing the policy of ‘containment’, or combining political and condemnation of the military actions that have caused the deaths of hundreds of innocent Lebanese and Palestinian civilians and the destruction of basic infrastructure… on Lebanese territory’, ibid., p. 9. Algeria: ‘In addition to its disproportionate response and the excessive use of force against the innocent population and vital civil infrastructure of Lebanon…’, ibid., p. 22; Guatemala: ‘Our country is extremely concerned at the Israeli military actions, in particular at the excessive use of force; the destruction of civilian infrastructure…’, ibid., p. 41. 170 Art 51 (5)(b) of Additional Protocol I. 171 R. Kirgis ‘Some Proportionality Issues Raised by Israel’s Use of Armed Force in Lebanon’ ASIL Insight 17 August 2006 . 172 Joint press conference by FM Tzipi Livni and EU Envoy Javier Solana, 19 Jul 2006, 173 S/PV.5493 Resumption 1 (21 July 2006) p. 23. 174 Government Decision 525 of 17 September 2006. 175 So named after its chairman, former justice Eliyahu Winograd.

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diplomatic moves with military strikes below the ‘escalation level’, or military preparations without immediate military action. While the reasons that the Commission considered such deliberation to have been necessary are not directly relevant to the legality of Israel’s response under international law,176 its finding on the absence of any discussion whatsoever, is. If the course of action was not debated, neither before going into battle nor during battle, then it could not have been established that no alternative measures were available.177 The Commission conceded that a potential argument for taking immediate military action was that any delay would result in international pressure not to take military action.178 However, under international law, if continuing the policy of containment and not resorting to force had been sufficient, it should have been preferred. Moreover, the Commission found that there was no systematic debate regarding the suitability of the military measures undertaken to the declared objectives of the war.179 This applied both with regard to the overall objectives of the operation, and with regard to the choice of an aerial campaign as opposed to a land campaign180. The absence of delibration as to the necessity and proportionality of the action may raise doubt on the legality of the action under international law. 6. CONCLUSIONS The analysis highlights the evolving role of irregular forces, and its impact on existing international legal norms. Many related issues have long been under debate, such as the qualification of repeated cross-border incursions as armed attacks, or the standard for measuring proportionality in self-defence. Relatively recent developments and perceptions shed new light on these issues, although a full picture of any new law is slow to emerge. Each development is unique in its circumstances. The 9/11 attacks, the construction of the Separation Barrier in the West Bank, and the conflict in Lebanon, differ in the magnitude of the attacks, their frequency, their territorial source, and their political background. In this respect the Lebanon conflict re-introduces, albeit with new characteristics, an old challenge, namely the regulation of conflict between a state on the one hand, and an irregular force acting from the territory of a passive neighboring state, on the other hand. A few tentative conclusions may be possible at this stage. First, the wide acceptance of Israel’s claim to self-defence, in a marked difference to past reactions, reflects the shifting attitudes towards acts of irregular military forces, particularly when characterized as terrorist acts. Second, there appears to be greater acknowledgement that the term ‘armed attack’ must be interpreted with elasticity to accommodate not new, but increasingly visible, phenomena. Finally, the recognition of a right to self-defence against an irregular force requires a more careful exploration of the relationship between the victim state and the host state. For example, the extensive criticism of Israel’s excessive use of force may eventually overshadow the acknowledgement of its right to self-defence. This conflict is therefore likely to play a role in the development of international law in many of the issues considered here. 176 The Commission determined that such options were necessary for Israel to maintain for Israel the full range of responses to the abduction. 177 Commission of Inquiry into the Events of the Military Campaign in Lebanon 2006 (Winograd Commission), ‘The Second Lebanon War, Interim Report’ (April 2007) para 25. 178 ibid., Para 24. 179 ibid., Para 29. 180 The commission noted that the decision to carry out attacks only from the air was from the start clearly insufficient to prevent rocket firing on civilian settlements in Israel, Para 23. The latter issue is a tactical one, which concerns ius in bello more than the question of the legality of the resort to force. The former, however, is a strategic question which falls within the ius ad bellum sphere.

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