By David B. Rivkin Jr. and Lee A. casey. They are Washington lawyers who served in the Justice Department under presidents Ronald Reagan and George H.W. Bush. They are also members of the U.N. Sub-Commission on the Promotion and Protection of Human Rights (THE WASHINGTON POST, 26/07/06):
Israel’s operations against Hezbollah in Lebanon and Hamas in Gaza have been widely condemned in Europe, the Arab world and at the United Nations as violations of international law. Some of the critics seem to deny that Israel has any legitimate right to use force. Others, while acknowledging its right to self-defense, nevertheless regard its exercise in these cases as illegal. Israel’s alleged offenses include treating mere “terrorist” attacks as an excuse to attack Lebanon, using disproportionate force, causing excessive civilian casualties and refusing to contemplate an immediate cease-fire.
In fact, Israel’s conduct has been fully compliant with the applicable norms of international law.
The primary claim by Israel’s critics is that it used force disproportionately in response to Hezbollah’s initial attack against Israeli soldiers, eight of whom were killed and two captured. The underlying assumption appears to be that Israel should have treated these provocations as terrorist acts and limited its response accordingly, rather than as justifications for a full-scale attack on Lebanese territory.
But in determining the existence of a legitimate casus belli , a state is entitled to consider the entire context of the threat it faces. Hezbollah is not simply a terrorist gang, like Germany’s Baader-Meinhof or Italy’s Red Brigades. It is a substantial political and military organization that has more than 12,000 short- and medium-range rockets and that has operated freely on Lebanese territory for many years, periodically launching attacks against Israel. Its stated goal is Israel’s destruction, and it is the client of a major regional power — Iran — whose government appears dedicated to the same goal.
Moreover, although international law requires a state to have a lawful reason to use force — such as self-defense — it does not mandate that a state limit its military response to “tit for tat” actions. Once a country has suffered an armed attack, it is entitled to identify the source of that attack and to eliminate its adversary’s ability to attack again. Its actions must be consistent with otherwise applicable international norms, but it is not required to accept a limited conflict that fails to meet and resolve the danger it faces.
That Lebanon has suffered from Israel’s actions does not change the legal rules involved. No state has the right to permit a foreign military force to use its territory to launch attacks against another country. Indeed, every country has an obligation to control its own territory. Lebanon’s failure (or refusal) to expel Hezbollah would in and of itself have been a legitimate cause for Israeli military action. It was the Taliban’s sheltering of al-Qaeda that was the basis of the U.S. attack on Afghanistan in 2001. And, although the current Lebanese government is certainly more democratic than the feudalistic Taliban, democratic credentials cannot insulate a state from responsibility for controlling its territory.
The specific aspects of Israel’s military operations in Lebanon and Gaza have also been condemned as being disproportionate and as thereby violating the laws of war. Although there is some grim humor in the spectacle of Russian President Vladimir Putin, whose troops have ravaged Chechnya, criticizing Israel for a “disproportionate” use of force, the claims — including dark warnings from Louise Arbour, U.N. high commissioner for human rights, about “war crimes” liability for Israel’s leaders — are without merit.
An army must always eschew deliberate attacks on civilians and consider whether the military advantage to be gained from an operation is sufficiently important to justify potential collateral damage to civilians. But this does not mean that installations and infrastructure, such as airports, bridges and the power grid, cannot be legally attacked. These are all dual-use targets — having a civilian character but also clear military value. Indeed, in NATO’s 1999 war against Serbia, exactly the same set of targets was attacked — with the agreement and approval of the European governments involved. In the current conflict, Israel’s primary military purpose in attacking these targets appears to be to cut Hezbollah’s supply lines, not to punish Lebanon.
Similarly, the occurrence of civilian casualties, or the fact that more Lebanese civilians have died than Israelis, does not prove that Israel has used disproportionate force. The law forbids an operation only if the hoped-for military benefit would be clearly disproportionate to the likely injury to the civilian population. Proportionality, however, must be calculated in the context of the entire conflict, and any civilian lives lost must be balanced against civilian lives saved.
Unfortunately, heavy civilian casualties are the inherent and inevitable result of the type of asymmetric warfare deliberately waged by Hezbollah and similar groups. They intentionally operate from civilian areas, both to protect their military capabilities from attack and to increase civilian deaths, which can then be trumpeted for propaganda purposes. But the presence of a large civilian population does not immunize Hezbollah or Hamas forces from attack. Responsibility for any additional civilian casualties must be attributed to those groups, not to Israel. The adoption of any other rule would reward and encourage the illegal behavior of such “unlawful” combatants, which would simply result in more danger to innocent civilians in the future.
Israel may legally seek victory in Lebanon, even if it requires a combination of ground and air operations, takes weeks to accomplish and results in civilian casualties. It is under no obligation to agree to an early cease-fire unless the terms of that agreement would vindicate its legitimate war aims: the security of its population from attack.
The legal rights Israel is exercising to defend itself today are the very same legal rights on which the United States must rely in the war on terrorism. Attempts to revise the traditional laws of war — moving toward a law-enforcement paradigm — so that law-abiding states cannot effectively protect their own populations from attack or even defend their territory from armed incursion are not humanitarian advances. They simply make the world safer for those who reject any notion of law in war.