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Operation Defensive Shield-The Legality of Armed Response

The Case for Israel in International Law
Institute Bulletin No.14 April 22, 2002

The next hurdle that Israel may face in world forums are charges under international law that either Israel’s intial incursion or subsequent actions violated international legal norms. Some of the more vehement enemies of the Jewish state have even started to use the term “war crimes”. Unfortunately, Canada, may find itself right in the middle of the latest controversy because prominent officials in this country,and even in our own community, have pushed our government to support the establishment of an International Criminal Court (ICC) and as with many utopian ideas this idyllic vision might be used as the spearhead of a vicious new campaign of calumny against Israel. It will probably be from the context of this new international institution that the latest attack on Israel will emerge. It is vital to be familiar both with the law on this issue, in its customary and treaty form, as well as the legal context of new buzzwords such as “proportionality” that could be the newest verbal grenades. The literature and language of this legal corpus will be the most important weapons of response.

To make this bulletin as usable as possible we will examine this issue under the following divisions:

• Conditions for Armed Response
• Violations of International Law: Palestinian Reponsibility
• Demands for Redress
• Necessity of Proportionality
• Armed Response under International Law: Self-Help & Self-Defense
• Talking Points

Conditions for Armed Response

For the purposes of this report let us start with the classic definition of reprisals as set out by Hindmarsh in “Force in Peace”which has been used as the seminal point of departure in the literature on this issue for the past seventy-five years:

“Public reprisals may be defined as coercive measures taken by a state, without belligerent intent, in order to secure redress for or prevent recurrence of, acts or omissions which under international law constitute international delinquency.”

Israel’s armed response in the current Mid-East context has occurred in a situation which can broadly be described as one of “absence of war” in the classic definition of war. But there have been violations of international law and responsibility by the Palestinian authority which meet the conditionality requirements allowing Israel to engage in armed response.

The three main conditions were set out by Colbert in “Retaliation in International Law” and are the recognized customary standards.

• First, there must have been a violation by a governing authority of an internationally recognized duty to another state. We will demonstrate below that there has been such a violation by the Palestinian Authority even if it was only related to its failure to control the suicide bombers and not inciting and funding them.

• Second, a demand for redress must have been made by the injured state.Israel has made these demands countless times.

• Third, the offending government must have rejected or neglected the demand for redress. No commentary necessary here.

Once these prerequisites are met the responses themselves, once undertaken, are subject to two overriding principles. They must be against the entities,institutional and organizational responsible. Israel has clearly taken great care to make its incursions “surgical”. Additionally, all responses should conform to what is known as the “doctrine of proportionality”.

We will now examine the overriding conditions and principles and their applicability to the current situation.

Violations of International Law

The attacks on Israelis and the breaches of Israel’s frontiers from the territory of the Palestinian Authority are both violations of international law justifying armed response by Israel. An excellent overview of the major doctrinal principles on this issue is “The Beirut Retaliation-A Case Study of the Use of Force in Time of Peace”,
New York University Journal of International Law and Politics. We will note only a few which demonstrate not only the violations of customary international law but also violations of specific international agreements. It will be very clear from the wording of these citations how they will play against the Palestinian Authority if given out to the media.

In 1951, the United Nations International Law Commission acting on a request from the General Assembly, prepared a Draft Code of Offenses Against the Peace and Security of Mankind,Article 2(6) of which included in its definition of such crimes the following:

“The undertaking or encouragement by authorities of terrorist activities in another State, or the toleration by the authorities of a State of organized acitivities calculated to carry out terrorist acts in another State.”

Article 2(4) of the same Draft Code,as widened by the Commission in 1954,condemns as an international crime under the Nuremberg principles:

“The organization or the encouragement of the organization,by the authorities of a State, of armed bands within its territory or any other territory for incursions into the territory of another State,or the toleration of the organization of such bands in its own territory, or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursions.”

Clearly, international legal principles condemn as violations of international law the support, encouragement and toleration of terrorist activities such as those carried out from the territory of the Palestinian Authority.

Government support of terrorist activities was also condemned in the Declaration on the Inadmissability of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty adopted by the U.N.General Assembly on Dec.21,1965. Article 2 of the Declaration provides that:

“…no State shall organize,assist,foment,finance,incite or tolerate subversive,terrorist or armed activities directed towards the violent overthrow of the regime of another state…”

On April 12, 1974, the United Nations Committee on the Definition of Aggression agreed that this violation of international law is comprised by the following:

“The sending by or on behalf of a state of armed bands,groups, irregulars or mercenaries which carry out acts of armed force against another state.”

The Palestinian Authority’s actions in financing suicide bombers, establishing bomb factories in the buildings of Arafat’s intelligence section and Force 17 in his compound in Ramallah,and fomenting and inciting violence against Israel would have been enough to justify Israeli armed response even without the overwhelming evidence that the Authority actively guides and protects the terrorists and suicide bombers. The conditions justifying armed response have clearly been satisfied.

Kelsen, writing in “Principles of International Law”,states that it is unquestioned that armed response may be undertaken when persons operating from the territory of one country commit a breach of international law against a second country and where the governing authority of the first fails to take action to prevent further breaches. In such a situation the illegal acts may be imputed to the governing authority.The government is as liable as if it conducted the action through its regular armed forces or direct orders.He writes:

“…states are obliged by general international law to prevent certain acts injurious to other states from being committed on their territories and if prevention is not possible to punish the delinquents…such injurious acts are hostile expeditions organized in the territory of the state and directed against the territorial integrity of a foreign state or intended to overthrow the legitimate government of another state.”

Oppenheim,writing in “International Law”goes further. He takes the position that if a government knew of activities of its nationals which violated international legal norms and did not suppress those activities then that state is responsible for those actions and anyone or anything belonging to that governmental authority may be the target of a reprisal other than individuals of the delinquent state living abroad and public debts owed by that state.

Israel has been criticized for attacking refugee camps yet those camps are staging grounds for bomb factories while under the supposed governmental and police control of the Palestinian Authority and the administrative direction of UNRWA.UN files are filled with reports from UN officials bemoaning the fact that the PA’s withdrawal of governmental authority from camp areas has exposed UN staff to danger. The Palestinian Authority is in partnership with the groups of killers it leaves in charge of the camps to use as bases of terror. Clearly these are the entities Israel is permitted to attack.

Demand for Redress

A note is necessary here on this issue. It is well known how many times Israel has asked the Palestinian Authority to curtail the terrorists. But what should be remembered is that Israel has just as often asked the U.N. for redress as some international legal authorities feel is a prerequisite prior to armed response.

It is not necessary to go through the entire sad record of the U.N. & Israel.It is well known to you all. Israel has not won a vote on a Mid-East issue in the U.N. since 1956. Attempts by Israel to introduce evidence of P.A. complicity in terror before the Security Council have constantly been rebuffed. Daniel P. Moynihan’s feelings about the world body in his “A Dangerous Place” bear remembering when he wrote that he felt he “was in the middle of a lynch mob” whenever Israel came up. We should remember that the U.N.’s anti-Israel bias is still so great that the U.S. refused to vote for the constitution of the U.N.’s Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories because it was staffed so conspicuously with anti-Israel personnel. The U.N.’s record on Israel is well known. We consider it here only for the purposes of international legal prerequisites to armed response and any questions we may be asked by media on this narrow point.

Julius Stone has written that a state would not have to resort to the United Nations where past experience has shown that no action will be forthcoming from that body.Citing Oppenheim:

“When a State is informed that a body of armed men is organized on neighbouring territory for the purpose of a raid into its territory,and when the danger can be removed through an appeal to the authorities of the neighbouring country or international authorities,no case of necessity has arisen. However if such an appeal is fruitless or not possible, or if there is danger in delay, a case of necessity arises and the threatened State is justified in invading the neighbouring country and disarming the intending raiders.”

Necessity of Proportionality

This question is important to examine particularly since its invocation by Foreign Minister Graham and certain Europeon leaders. This notion has a very broad range of definitions. Richard Falk in the “Law of Retaliation” takes the traditional view that armed response should not inflict more damage than was inflicted during the initial injury. Venezia in “La Notion de Represenailles en Droit International Publique” broadens the traditional view by adding that reprisals should not offend
norms of civilized conduct and regard for human life and that the retaliating state must avoid a use of force which would risk a full scale war or jeopardize world peace.
Colbert, adding yet another definition, understands proportionality to mean that a state not employ force beyond the extent necessary to accomplish the purpose of the reprisal.

The parameters defining proportionality are inherently contradictory. If a state accepts Falk’s view then Colbert’s makes no sense. Israel does not engage in armed response for sport or shooting practice. Israel launched this campaign to prevent future terrorist raids.The purpose of Israel’s armed response is to destroy the cause and the base of the violators and violations of international law which Israel, as has been demonstrated, is fully entitled to do under customary and legislative international law. If terrorists killed two Israelis it would make no sense for Israel to launch a retaliation simply to kill two Palestinians. This would be a punitive rather than a preventive action and would be the subject of even more condemnations.

It is in the consideration of Venezia’s definitions that we meet some of the challenges we face from government and media. How can we address the need not to offend norms of civilized conduct and regard for human life? Israel has been repeatedly criticized for carrying out reprisals against refugee camps with the consequent collateral damage of the deaths of some civilians. Yet collateral damage is not intentional homicide. The camps are the headquarters for terror and Colbert’s definition allows Israel to attack the instigators of the violence. Without repeating the obvious it is the Palestinian Authority that lacks regard for human life by endangering refugees by establishing and tolerating homicide camps in the heart of the refugees. This is a logical extension of Palestinians using women and children as human shields. Israel right to armed response against the camps is clearly proportional.

As for Venezia’s second concern there is a problem of perception. None can foresee what amount of force will trigger the Arab world into a wider war. The Arab world does not need much of an excuse to attack Israel. The niceties of the Europeon legal traditions are lost in the Arab world. It is impossible to measure what amount of force is sufficient. The justification for reprisals is that they will wipe out the cause of violations of international law. No state knows better than Israel how much force is necessary and no state can afford a war less than Israel.

Proportionality is a vague and subjective notion. It does not abort nor abridge the right under international law for a state to exercise armed response. The inherent contradiction which exists between proportionality and the right of armed response might be resolved if we use proportionality as a tool to define the farthest frontiers of where a state may go after it accomplishes its military goals in eliminating the perpetrators of international delinquencies.

Armed Response Under International Law

Some legal theorists take the view that Israel’s armed response is illegal because of the provisions of the U.N. Charter. They feel that Artcles 2(3) and 2(4) prohibit any use of force which cannot be justified as self-defense under Article 51 and that the scope of the current Israeli operation does not constitute legitimate self-defense.

We must be prepared to address this charge. Julius Stone, amongst other international legal experts,strongly disagree with this narrow definition. Their view is that the phrase “and justice” in Art.2(3) and the phrase “against the territorial integrity or political independence of a member state or in any manner inconsistent with the purposes of the United Nations” in Art.2(4) must be read as restricting the application of these two sections. In “Aggression and World Order:A Critique of U.N. Theories of Aggression” he argues that if justice were not to be served by the peaceful negotiations required by Art.2(3) a state would be fully justified in protecting its interests through a restrictive interpretaion of this section and thus engaging in armed response. The resort to force of arms would be justified under Art.2(4) where there was no intention to change the territorial integrity or political independence of the authority attacked---merely to remove the causes of the breaches of international law. Clearly Operation Defensive Shield does not aim to change the P.A.’s boundaries nor to negate its political independence. Israel does not seek to replace the governing authority-merely to root out the causes of violence which the Palestinian Authority is unable or unwilling to do and thereby Israel as the injured party has a right to do precisely because of the impotence of the P.A.

Derek Bowett in “Self-Defence in International Law” takes a much broader definition stating:

“The right of self-defence is common to all systems of law.As a legal concept its function and its scope may well vary with the degree of maturity attained by the system of the law in which it finds a place. In any immature system of law, where there is absent any centralized machinery for the enforcement of the law and the protection of the rights of individuals, or where such machinery is inefficacious or dilatory in securing those ends, the need to allow the individuals whose rights are endangered by a breach of the law to protect their rights by their own action is obvious.”

The United Nations laid down the maintenance of international peace and security as one of its fundamental aims. The actions of the terrorists and of the Palestinian Authority constitute aggression by the U.N.’s own definitions as well as by customary standards. Israel’s operation,it can be argued, is an attack on aggressors and frankly furthers the spirit and letter of the Charter.

Robert Tucker in “Reprisals and Self-Defense” writes that though the U.N. has attempted to discourage armed response, the functional equivalent of such measures are permitted as self-defense and that the U.N.’s own definitions of the latter term include all measures necessary for the protection of a state’s territorial integrity and any other interests making up the state’s security. Tucker is clear that certainly under customary standards, but even under U.N. definitions,armed response can be utilized as self-defense in response to attacks quantitatively and qualitatively different than a traditional invasion by one state of another. Tucker’s classic example of this is the U.S. blockade of Cuba where America justified resort to forceable measures and invoking the self-help doctrine of self-defense even though neither the Soviet Union nor Cuba had technically violated any norm of international law. In our current Mid-East Crisis we have considerable violations by the Palestinian Authority both of customary and treaty law.

Talking Points

• Israel has satisfied the three conditions precedent for the utilization of armed response under international law. Clear violation by a governing authority of international standards, demands for redress by the injured state and the rejection or neglect of such demands by the offending party.

• The Palestinian Authority is the entity responsible under even the mildest international legal tests thereby satisfying the first principle of engagment.

• Israel has satisfied three of the four tests of proportionality even though this notion is not a doctrine which can abort nor abridge a state’s right to armed response particularly within the context of Israel’s use of the self-help aspects of the U.N.’s own definition of self-defense.

• Israel’s armed response was taken against an enemy whose actions constituted aggression within the United Nations own definitions thereby justifying force of arms once again even under restrictive U.N. definitions of self-defense.

• Under customary international law Israel was fully justified in exercising armed response for the protection of its territorial integrity and the protection of its citizenry.

• Seeing no other avenue of redress either from the Palestinian Authority nor from international bodies Israel’s armed response was justified under the doctrine of necessity.

Beryl Wajsmann
Institute for Public Affairs

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