The Israeli Strike(s) in Syria and International Law

The range of discourse in Israel over Israeli policies toward the Palestinians is far greater than it is in the United States concerning all the most crucial issues: the extent of Israeli responsibility for the failure of the Camp David negotiations in 2000 and the general breakdown of the peace process since then; the nature of the Palestinian intifada and the Israeli response to it; the justifiability of the continuing Israeli occupation of the West Bank and Gaza and the repression that has accompanied it; the consequences of the Israeli separation barrier and other measures designed to ensure de facto or de jure Israeli sovereignty over parts of the West Bank and effective control over most of the rest of it; the significance and purpose behind the 2005 Israeli withdrawal from Gaza; the extent and justification for the violence and terrorism employed by both Palestinians and Israelis in the ongoing conflict…and whether the rise of Hamas in Gaza has ended all prospects for compromise.—Jerome Slater

After the occupation of 1967 [the ‘vision of the primacy of force’ going back to the founding of the state of Israel], helped create a disturbing, schizophrenic self-image in which, in the name of legitimate self-defense, the justification of the worse misdeeds was mixed with a perpetuation of their denial. But in the aftermath of 1948 this vision still clashed with the image that the leadership of the yishuv was seeking to promote, that of a conflict between one camp bearing the values of civilization, peace, progress, emancipation, and freedom against the retrograde and aggressive camp of ‘the Arabs’ in general. As a consequence, this leadership chose to establish as official history the denial of facts and responsibilities.—Sylvain Cypel

The way [Israeli] society portrays its Arab opposite numbers both in intellectualized forms and in popular manifestations is, on the whole, based on a very deep sense of superiority in terms of civilization and culture (Western), politics (democratic), and intellect, onto which is grafted willful ignorance and indifference along with fantasy projections onto the Arab, all these giving rise to denial of his real identity—in extreme cases of his simple humanity. Not just ordinary people but a large number of intellectuals will readily tell you that Arabs have ‘a different sense from ours’ of life and death, that an Arab mother has many children and ‘doesn’t suffer the same way we do’ if one of them dies. [….] On many occasions [Ehud] Barak has used the following metaphor to characterize the situation of Israel within the Arab world: the Jewish state is ‘a villa in the jungle.’ The image speaks volumes about the way Barak seems himself and the Arab world: Israel is an island of modernity, prosperity, and propriety in a natural, savage environment that has to be tamed to prevent it from encroaching.—Sylvain Cypel   

I routinely read a handful of international law and politics blogs, including EJIL Talk! (of the European Journal of International Law) and especially Opinio Juris. Of late, I’ve added regular visits to the Arms Control Law blog, having benefitted from the scholarship of two of its ten bloggers, namely, Daniel Joyner and David Fidler. Professor Joyner, the founder and administrator of the blog has written a number of posts essential to a dispassionate and rational understanding of Iranian nuclear policy and its putative pursuit of nuclear weapons, about which there has been much hysteria, suggesting that “Iranophobia” is not a peculiarly Israeli obsession.[1] But the post at issue here is not about the “Iranian nuclear crisis,” rather, it concerns Dan’s views on the recent Israeli airstrike(s) in Syria, the target or targets of which have not to date been clear: “While the main target of the attack on Wednesday seems to have been SA-17 missiles and their launchers — which the Israelis feared were about to be moved to Hezbollah forces in Lebanon — video shown on Syrian television backs up assertions that the research center north of Damascus also suffered moderate damage.”

As we learn below, Dan finds “Israel’s motivations and reasoning” behind this strike (or these strikes) “compelling,” conceding a suspicion that the “[f]rom a strictly formal international legal perspective,” Israel is in “violation of Article 2(4) of the UN Charter, and is not justified by Article 51 or the customary law principle of anticipatory self-defense:”[2]

“I’m sitting at a cafe in the Marais district of Paris, waiting for my entrecôte to arrive, and just read about the Israeli airstrike in Syria, apparently targeting a shipment of missile parts which the Israelis expect were heading to Hezbollah for use against Israel.

I thought I would just give my quick reaction to the incident, and others can weigh in too. My opinion is heavily influenced by the current state of chaos in Syria, and indeed I’m quite confident that this circumstance is the sine qua non of the Israeli government’s extraordinary decision to strike within Syrian territory.

From a strictly formal international legal perspective, I suspect that this strike is, notwithstanding the current unrest in Syria, still a violation of Article 2(4) of the UN Charter, and is not justified by Article 51 or the customary law principle of anticipatory self-defense.

However, this is a situation in which I completely understand Israel’s motivations and reasoning, and I think that those reasons are compelling.

So my quick assessment of the incident is that, while it was probably technically illegal, I would have done the same thing under these circumstances if I was the Israeli PM.”

After a series of comments, Dan adds:

“This post has clearly troubled some people. Please understand that the professional discipline of a lawyer trains us to determine correctly what the law is, and what actions are in compliance with the law. The decision of whether or not to comply with the law is not a decision for lawyers. It’s a political decision. In this piece I did my job as a lawyer, stating what I believe to be the correct understanding of law and application to facts. I did then go beyond the lawyer’s job to give my own political/practical opinion about what should be done in this case.

Some of my colleagues in academic international law consider themselves to be priests in a religion called international law – and they consider any breach of international law to be blasphemous. That’s not me.

I am essentially a positivist. I think that humans create law, and that law is imperfect. Thus, there will be some times, hopefully very rare, when following the law will not be the right choice for a state to make, in considering all of the interests and values involved. Again, I think that this should be very much the exception, and should only take place in exceptional circumstances. In this case, I said that my opinion was heavily influenced by the exceptional circumstances of civil war and general anarchy in Syria.

But here is an important distinction. I am also a jurisprudentialist, and I don’t believe in bending or simply fudging the correct interpretation of the law to try and make the law appear to justify something that it doesn’t. So, in the rare cases, like this one, in which I think a violation of the law is needed, I think governments should be honest about what they are doing, as I was in my analysis. This is the only way in which the law will change through customary development over time. And it pays respect to the law, even in cases in which it is necessary to breach the law.

In my opinion it’s much more disrespectful to international law to be disingenuous in arguing that your violative action is in fact justified by international law. That just makes the law into a farce.”

Finally, and following yet more comments, including a couple from yours truly, Dan reiterates and clarifies his response to the strikes:

[….] “I would make the same assessment if the identities of the states were different in this situation. Can any one of you honestly say that if it was your country being threatened in this way, you wouldn’t do the same thing? Especially when in this particular instance, the loss of life caused by the action appears to have been minimal.

Isn’t it at least somewhat analogous to a situation in domestic law in which the life of a loved one may depend on breaking the law? Who can honestly say that they wouldn’t do whatever was necessary in that situation, particularly if no one or few would be hurt by it? I’d break a lot of laws if such a case of extremity arose and would not feel guilty about it.

I have written at length in academic publications about what I consider to be the gap between law and reality with regard to use of force law [The paper is found below in the ‘references and further reading.’] So this is something that I’ve given a lot of thought to, and tried to work out from a theoretical as well as doctrinal perspective. That certainly doesn’t mean that everyone will be persuaded by my analysis. And I know that some of you have noted that, if we start carving out times when it’s right to disobey international law, when does it stop? Isn’t it a slippery slope? Can’t Israel say the same thing about what it considers to be the threat from Iran? Well, you are right to say that my prescription in this case, if generalized, does introduce subjectivity into decisions about international uses of force that undermine it as an area ruled by law. But as I explain in my article, I think this is unavoidable in this particular area of international relations, and that in fact international law is simply not at a stage of its evolutionary progression to provide adequate regulation to international uses of force in particular.

Again, this does not stop me from rendering an objective, rigorous analysis of the law as it currently stands in each case that is presented. As I said, I don’t believe in fudging the interpretation of the law. And to be clear, it’s really only in the area of use of force law that I personally would allow for this kind of necessity of flexibility in expectations of compliance. As I explain in the article, use of force law is anomalous in many ways, and in other areas of international law, in my opinion, there really is no excuse for not complying all the time.”

Please note: I began this post before the last reply from Dan appeared, and because this post is already rather long, I won’t address (here and now at any rate) the latest clarification of his argument (or the argument in the paper he links to for that matter). Dan implores us “to maintain our objectivity in this case, even when the subject of analysis is a country some of whose actions many of us disagree with,” and I have tried to remain objective in what follows, but that does not rule out the belief that this latest event should be placed in a geopolitical and historical context and larger legal pattern, one that finds Israel deserving of its reputation for being considerably less than forthcoming when engaging in behavior of this sort. Be that as it may, it is refreshing and encouraging (and not surprising in his case) that Dan concludes by saying that he “agree[s] that clearer understanding of the facts could change both the legal analysis, as well as my own political analysis of the rightness of the action. So I’m happy to have this conversation continue.”

My response to Dan’s argument:

While I disagree with the position taken in Dan’s initial post, I certainly endorse his explanation of the need to occasionally break the law, municipal or international. Even most (all?!) of us “non-positivists” believe humans create law and that law is imperfect! As to an argument for the need to occasionally break international law in a principled fashion that nonetheless demonstrates a strong belief in the necessity and value of international law, please see Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford University Press, 2004): 440. See too Buchanan’s article, “From Nuremberg to Kosovo: The Morality of Illegal International Legal Reform,” Ethics 111 (2001): 637-704. To the extent that the “rule of law” itself may require principled violations of international law, we might speak not only of the international analogue to municipal civil disobedience, but of the international analogue to the seemingly paradoxical idea of “lawful departure from legal rules” as discussed by Mortimer R. Kadish and Sanford H. Kadish in Discretion to Disobey: A Study of Lawful Departures from Legal Rules (New Orleans, LA: Quid Pro Books, 2010/originally published by Stanford University Press, 1973). Buchanan is not a positivist, yet in correspondence with me expressed the wish that his position not be viewed within the rubric of natural law, owing to what he believes (wrongly, I think) are unavoidable religious connotations associated with the term. However, Larry May, in Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005), provides us with a secular, “minimalist” account of natural law principles (one ‘that derives its constraints on the use of violence from principles of human psychology and morality’) generated from the work of Thomas Hobbes and H.L.A. Hart (!) by way of a moral and legal justification of international criminal law. While May does not, if I recall correctly, discuss the principled violation of international law, I think one could reason from his principles to warrant such a possibility given certain kinds of failures in the international community (say, with the Security Council) with regard to enforcement and sanction of jus cogens norm violations. In short, if we are to talk of the occasional necessity for breaking international law, we should elaborate the legal and moral principles that would warrant such law-breaking, principles that demonstrate our firm belief in the necessity of international law and our concern not to do anything that might undermine confidence in its value (as in Gandhian-like acts of civil disobedience). I don’t think Israel has provided us with sufficient reason to describe its actions as an instance of same, in fact, it’s rather in keeping with a history of flouting international law, the latest instance of which is seen in the United Nations Human Rights Council “Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem.” The settlements, the report unequivocally states, “have been established and developed at the expense of violating international human rights laws and international humanitarian law.”

It helps by way of geopolitical and historical context, to think of Israel’s conduct toward and relations with Syria going back before the 1967 Six Day War, as well as the history of Israeli provocation and aggression in the region. As Zeev Maoz explains in his invaluable tome, Defending The Holy Land: A Critical Analysis of Israel’s Security and Foreign Policy (University of Michigan Press, 2006), “Israeli misconduct during the border conflict with Syria was to a large extent responsible for the process of escalation that evolved into the May-June 1967 crisis. Moreover, the dominant role of the IDF in foreign and security affairs had important implications for the management of the crisis and for the outcome of the war.” In other words, Israel “carries a major portion of the blame for the deterioration and escalation of Israeli-Syrian relations.” Israeli adventurism in this affair was emblematic of and set the tone for future IDF strategies of military engagement that were subject to little or no effective independent political control. As Maoz’s careful study illustrates, “the Six Day War was not only born in sin; it had profound ramifications—most of them negative—for Israeli policy and society for years to come.”[3] Consider, for instance, the subsequent 1973 Yom Kippur War with Egypt and Syria which, as suggested by a “growing body of scholarship…could have been averted by diplomacy, and [the fact that]…Israel bears the major burden of this diplomatic failure.” It’s probably not well known that “Israel armed its nuclear warheads on at least two occasions during the war: October 9 and October 23.” 

Consider, next, the Lebanon War that began in June of 1982 and, technically, did not end until May of 2000 when “the last IDF soldier left Lebanese soil.” Maoz reminds us that “There is no question that [the war] was a war of Israeli aggression.” It’s not always easy to determine Israeli motivations behind such acts of aggression, although in this case the war was conceived as “part of a grand scheme aimed at creating a new order in the occupied territories designed to perpetuate Israeli occupation of the West Bank and Gaza by destroying the PLO.” In hindsight, we can say the scheme resulted in no small amount of “blowback,” as “the defeat of the PLO in Lebanon was instrumental in fomenting a new kind of Palestinian nationalism” and helped give increasing strength to the species of religious nationalism represented by Hamas.

Israel’s “limited use of force” and “low-intensity strategy” has ostensibly been one formulated for deterrence purposes yet the history of its employment suggests its primary use as a tool of “strategic escalation” and provocation of conflict, often leading to war. As Maoz writes, such strategy has been based on “escalation dominance,” that is, disproportionate responses to real or perceived provocations and for the insinuation or facilitation of military initiatives that crowd-out or trump any sincere or sustained consideration of conventional non-military foreign policy alternatives and initiatives. In fact, even when such strategy was meant to be used solely for deterrence purposes, “it resulted in inadvertent escalation.” In stepping back and looking at the proverbial big picture at this point, we reach a disturbing conclusion: “The notion that force in fact exacerbates anti-Israeli violence is not part of the strategic discourse in Israel.” Why is this so important? “A military policy that is not accompanied by policies aimed at reducing the adversary’s motivation for violent action cannot be successful, either in the short or in the long term.” Moreover, Israeli military policy must be seen in the larger light of over six decades of repeated interventions (at attempts at intervening) in the domestic affairs of Arab states and the Palestinians through overt and covert use of intelligence, military, political and economic means.

Maoz describes Israel’s “peace policy” as characterized by decision makers “reluctant and risk averse” when it comes to making peace, yet “daring and trigger happy when it comes to making war.” This is further confirmed and entrenched by the fact that these same decision makers typically have “not initiate[d] peace overtures,” instead, “most of the peace initiative in the Arab-Israeli conflict come either from the Arab world, from the international community, or from grass-roots and informal channels.” On the precious few occasions Israel has been willing to take risks for peace, they have paid off, however, “The Arabs generally showed a remarkable tendency for compliance with their treaty obligations. In quite a few cases, it was Israel—rather than the Arabs—that violated formal and informal agreements.” Israel’s foreign policy has been marked by a “profound sense of paranoia” that ritually invokes the refrain of “existential threats,” combining a volatile “siege mentality” with a “policy of arrogance” that “entails an expectation that when the Arabs are sufficiently weak” they will be willing to come to the negotiating and bargaining table on Israeli terms.  

Finally, and relatedly, we need to appreciate the fact that Israel’s “structural militarization—or rather securitization—of policy making on national security and foreign affairs highlights the total lack of oversight and control of the IDF and the security community by the civilian community [whose institutions in this regard are characterized by their ‘pathetic weakness and near irrelevance’].”

At the very least (meaning there are other more immediate and contemporary variables to take into account as well), we should examine the recent Israeli airstrike in Syria within this larger geopolitical and historical framework and legal pattern if we want to assess the plausibility of its ostensible or speculative rationalization or justification. Richard Silverstein recognizes at least some of this framework in his comment on the Syrian strike:

“Israeli intelligence and military officers are used to having complete freedom of action in their theater of operations. But the rules of the game are rapidly changing, both with the results of the Arab Spring and the continuing deterioration of Israel’s status both in the region and internationally. [….] Enemies who are relatively weak and powerless don’t stay that way forever. Just because you’ve enjoyed command of air, sea and land for decades doesn’t mean it will remain so. Things change. Balances of power change. The day of unquestioned Israeli supremacy is rapidly drawing to a close. The question will be whether Israel can make its peace with this development or whether, like Samson, it will shake the pillars of the temple that is the Middle East and bring them down, taking itself and all its enemies with it. Any country with 200 nuclear weapons has the power to do this.”

Human rights organizations, journalists, the International Red Cross, and various U.N. offices have amply documented Israel’s history of what international law considers the disproportionate and indiscriminate use of force, “and on a much larger scale than Hamas” (Saree Makdisi). Knowledge of this history should at the very least prompt us to place this latest incident into a larger geopolitical and legal pattern before assessing the case with regard to how it may present a legal and political analysis with unique features that ill-fit or are somehow outside that pattern. And while acknowledging international law on the use of force may not be all we would like it to be, the seriousness of an Article 2(4) violation (sans an Art. 51 justification) is clear from its status as a jus cogens norm (and whether or not we understand such norms as grounded in secular natural law principles or in some other extra-consensual form of moral and legal justification).[4]

Short of that, we might exercise a strong dose of skepticism when it comes to Israel’s avowed reasons (should they be fully forthcoming) for this violation of state sovereignty and act of aggression, placing a rather stringent burden of legal proof on the Israeli side of the equation, one that Israelis in the past have been loath to meet.

Notes:

[1] For an excellent historical perspective, see David Patrikarakos, Nuclear Iran: The Birth of an Atomic State (London: I.B. Tauris & Co., 2012). This post from Kevin Jon Heller is illustrative: “Yet another estimate of when Iran will have the bomb.” As Kevin notes, “Israel (and the West) have been crying wolf over Iran’s nuclear capability for nearly three decades.”

[2] I agree with Mary Ellen O’Connell that customary law on this issue is no longer relevant and that Article 2(4) “is a jus cogens norm.” Please see the discussion, “Unilateral Armed Measures” (Ch. 4), in her book, The Power and Purpose of International Law (New York: Oxford University Press, 2008): 153-191. For a normative account of the “crime of aggression” in international criminal law, see Larry May’s Aggression and Crimes against Peace (New York: Cambridge University Press, 2008). For an uncommonly lucid treatment of jus cogens norms, see May’s chapter on same in his Crimes against Humanity: A Normative Account (New York: Cambridge University Press, 2005): 34-39.

[3] Cf.: “[Yoram] Dinstein has written that Israel may have made a good faith mistake in 1967 when it attacked Egypt. Israel stated on both June 5 and June 6 that it acted in self-defense against actual and armored attacks on the territory of Israel. Soon after, it represented that it had had convincing intelligence that Egypt was about to attack—that preparations were under way. This was apparently not the case.” As Mary Ellen O’Connell further explains in a note to the foregoing, “In reporting on its initial use of force Israel stated to the Security Council that the Egyptian forces had actually crossed into Israeli-held territory. By June 17, when the General Assembly began its debate on the conflict, Israel’s foreign minister no longer spoke of actual Egyptian attacks but only of Egyptian forces approaching Israel’s borders.” Mary Ellen O’Connell, The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement (Oxford University Press, 2008): 175. Also essential reading is Sylvain Cypel’s chapter eight, “Mute Oracles: The Transformation of Israel after the Six Days’ War,” in Walled: Israeli Society at an Impasse (Other Press, 2006). According to Cypel, “Two things are certain. The first is that the instigators of the allegedly preemptive attack—Defense Minister Moshe Dayan, who was their intellectual leader, and the generals around him—did not have a moment’s fear for the survival of Israel. The second is that the Jewish population of the country, for its part, was intensely fearful of annihilation and saw the victory as miraculous. The Israeli government reinforced this perception once the war was over. The day after the cease-fire Prime Minister Levy Eshkol told the Knesset that Israel’s existence had been hanging by a thread.” Cypel quotes General Matti Peled, “in charge of logistics for the general staff in 1967,” as proclaiming that the decisive power swiftly employed but its military forces “’was necessary for the definitive crushing of the Egyptians on the military level and their patrons, the Soviets, on the political level. To claim that the Egyptian forces massed on the border were capable of threatening the existence of Israel is an insult not only to the intelligence of anyone who is able to analyze this type of situation but, above all, an insult to the IDF.’ Former minister Mordechai Ben-Tove was given the final word. He said that ‘this whole story about the danger of extermination was exaggerated after the fact to justify the annexation of new territory.’”

[4] Kamrul Hossain, “The Concept of Jus Cogens and the Obligation under the U.N. Charter,” Santa Clara Journal of International Law, Vol. 3, 1 (1-1-2005). Available: http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1011&context=scujil For a dissenting view, see James A. Green’s article, “Questioning the Peremptory Status of the Prohibition of the Use of Force” (2011) 32 Michigan Journal of International Law: 215-255. Available: http://www.mjilonline.org/wordpress/wp-content/uploads/2012/06/v32n2-green.pdf

References & Further Reading:

• Brownlie, Ian. Principles of Public International Law. New York: Oxford University Press, 5th ed., 1998.
• Buchanan, Allen and David Golove, “Philosophy of International Law,” in Jules Coleman and Scott Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law. New York: Oxford University Press, 2002: 869-934.
• Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. Oxford, UK: Oxford University Press, 2004.
• Cassese, Antonio. International Law. New York: Oxford University Press, 2001.
• Criddle, Evan J. and Fox-Decent, Evan. “A Fiduciary Theory of Jus Cogens” (October 2, 2008), Yale Journal of International Law, Vol. 34, 2009. Available: http://ssrn.com/abstract=1277393
• Cypel, Sylvain. Walled: Israeli Society at an Impasse. New York: Other Press, 2006.
• Danilenko, Gennady M. “International Jus Cogens: Issues of Law-Making,” European Journal of International Law, Vol. 2, 1991: 42-65.
• Falk, Richard and Burns H. Weston. “The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada,” Harvard International Law Journal 32, no. 1 (1991): -129-150.
• Falk, Richard and Burns H. Weston. “The Israeli-Occupied Territories, International Law, and the Boundaries of Scholarly Discourse: A Reply to Michael Curtis,” Harvard International Law Journal 33, no. 1 (1992): 191-204.
• Joyner, Daniel H. “Jus Ad Bellum in the Age of WMD Proliferation,” The George Washington International Law Review, Vol. 40, No. 1 (2008): 233-288.
• Kattan, Victor Matthew. “The Use and Abuse of Self-Defence in International Law: The Israel Hezbollah Conflict as a Case Study” (June 15, 2007). Available: http://ssrn.com/abstract=994282
• Kattan, Victor Matthew. “Israel, Gaza, and Operation Cast Lead: Use of Force Discourse and Jus Ad Bellum Controversies” (June 21, 2009). The Palestine Yearbook of International Law, Vol. XV, pp. 95-117, 2009. Available: http://ssrn.com/abstract=1627998
• Maoz, Zeev. Defending the Holy Land: A Critical Analysis of Israel’s Security and Foreign Policy. Ann Arbor, MI: University of Michigan Press, 2006.
• May, Larry. Crimes against Humanity: A Normative Account. New York: Cambridge University Press, 2005.
• May, Larry. Aggression and Crimes against Peace. New York: Cambridge University Press, 2008.
• O’Connell, Mary Ellen. The Power and Purpose of International Law. New York: Oxford University Press, 2008.
• Ragazzi, Maurizio. The Concept of International Obligations Erga Omnes. New York: Oxford University Press, 1997.
• Sands, Phillipe. Lawless World: America and the Making and Breaking of Global Rules…. New York: Viking Penguin, 2005.
• Slater, Jerome. “Muting the Alarm over the Palestinian Conflict: The New York Times v. Haaretz, 2000-2006,” in National Security, Vol. 32, No. 2 (Fall 2007): 88-120. Available: http://www.mitpressjournals.org/doi/pdf/10.1162/isec.2007.32.2.84
• Sztucki, Jerzy. Jus Cogens and the Vienna Convention on the Law of Treaties. Vienna: Springer Verlag, 1974.
• Verdross, Alfred von. “Jus Dispositivum and Jus Cogens in International Law,” American Journal of International Law, Vol. 60, 1966: 55-63.