Israel in Lebanon and the "War on Terror" -- the limits of self-defense
By Nicolas J S Davies
Journal Contributing Writer
Jul 27, 2006, 01:03
U.S. officials are defending the Israeli government�s
military actions in Lebanon as an exercise of its right of self-defense, and
the United States has vetoed a U.N. Security Council resolution that called for
an immediate ceasefire. This is consistent with the position adopted by the
U.S. since September 11, 2001,: that the principle of self-defense gives
countries a virtually unlimited right to attack or otherwise violate the
sovereignty of other nations from which terrorist or guerilla groups plan and
launch attacks. This position has formed an essential pillar of the U.S.
government�s �War on Terror.� What�s wrong with this argument?
Under current international law, there are only two
internationally recognized justifications for the use of military force. One is
at the request of the U.N. Security Council, and the other is in self-defense.
Article 51 of the U.N. Charter states that �Nothing in the
present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures to maintain international peace
and security.� Self-defense is thus recognized as an �inherent right,� but only
until the Security Council has acted to restore peace and security.
The recurring and obvious difficulty with the justification
of self-defense is to define what constitutes a legitimate act of self-defense
as opposed to an opportunistic and excessive response to a provocation. The
distinction is invariably in the eye of the beholder.
However, international law has relied for more than 160
years on principles established following a British attack on the Caroline, an American passenger ship, on
the Niagara River in 1836. The British viewed the attack as an act of
self-defense, since the Caroline was
being used to smuggle weapons to anti-British rebels in Canada. Americans saw
it as an act of war against the United States.
The dispute was resolved when British Foreign Secretary Lord
Ashburton agreed with U.S. Secretary of State Daniel Webster that �Respect for the inviolable character of the territory of
independent nations is the most essential foundation of civilization,� and that
this can only be legally overridden by �a necessity of self-defense, instant,
overwhelming, leaving no choice of means, and no moment for deliberation,� and
�the act . . . must be limited by that necessity, and kept clearly within it.�
This principle has stood the test
of time and changing circumstances, and was cited word for word by the judges
at Nuremberg in rejecting the claims of the Geman defendants that some of their
attacks on other countries were acts of self-defense.
It is interesting that this
principle of international law was developed in response to a case involving
asymmetrical warfare by �insurgents� or �unlawful combatants� using a merchant
vessel and its passengers and crew as �human shields.� This contradicts the
American argument that such tactics are unprecedented and require responses
otherwise forbidden by international law, since it was precisely those tactics
that led to the formulation of the existing law.
So, how do these principles apply to the Israeli campaign
against Lebanon? Is Israel faced with �a necessity of self-defense, instant,
overwhelming, leaving no choice of means and no moment for deliberation�? And
are its recent and present actions �limited by that necessity, and kept clearly
Israel has argued that a military response to the missile
attacks and the capture of its soldiers was a legitimate exercise of its right
to defend itself. The Israeli government may have believed in good faith that
the government of Lebanon was incapable of rescuing and returning its soldiers
or stopping the Hezbollah missile attacks. However, the bombing of Tyre,
Beirut, many villages and much of the country�s infrastructure clearly do not
meet what Robin Cook called �the twin tests of necessity and proportionality�
established by the Caroline case.
The inability of the U.N. Security Council to take measures
�to maintain international peace and security,� as called for in Article 51,
betrays a long-recognized weakness in the U.N. system. Albert Camus wrote in
1946 that the Security Council veto �would effectively put an end to any idea
of international democracy . . . The Five would retain forever the freedom of
maneuver that would be forever denied the others.� In this case, the United
States has used its veto to override a ten-to-one majority in the Security
Council so as to prevent U.N. intervention to bring about and enforce a
Any necessity for continued
Israeli military action under Article 51 is therefore the direct result of the
U.S. veto, which has prevented the U.N. from assuming its responsibility to
restore peace and security.
U.N. Secretary General Kofi Annan has told the Security
Council that �Israel�s disproportionate use of force and collective punishment
of the Lebanese people must stop,� implicitly rejecting the notion that Israel
has �no choice of means� in its actions. Neither the escalation of the Israeli
campaign under the cover of the U.S. veto, nor the killing and terrorizing of Lebanese
civilians are therefore justified by the argument of self-defense, either in
the eyes of the Secretary General, or under current international law.
The United States has used a similarly expanded definition
of self-defense to justify its nearly five-year-old war against the Taliban in
Afghanistan, the war in Iraq and interventions by U.S. �special forces� and
intelligence agents in Somalia, Iran, Syria, Pakistan, Italy and other
Despite the secrecy surrounding many of these operations, U.S.
assertions of the right to conduct such operations are no secret. The Defense Strategy of the U.S.A. (2005)
threatens unilateral military action against �gathering threats,� �emerging
challenges,� �to deny an opponent the strategic initiative� and to �defeat
adversaries at the time, place, and in the manner of our choosing � setting the
conditions for future security,� -- none of which constitutes a legitimate
exercise of the right of self-defense under international law.
The consequences for the world of the abandonment of
international legitimacy by such a powerful country are only gradually becoming
apparent, but, in historical terms, peace and stability are unravelling very
fast. Afghanistan, Palestine, Israel, Lebanon, Iraq, Colombia and Haiti have already
been engulfed by intractable violence. U.S. policy is undermining hopes for
peace in Somalia and Nepal, and destabilizing Pakistan, Iran, Saudi Arabia and
other Muslim states; and the threat of U.S. intervention still hangs over most
of Latin America.
Nuclear proliferation has received its biggest boost since
1945 as the preferred means for weaker countries to deter American aggression.
Britain and France came to rely on nuclear weapons in the 1950s and 1960s in
response to their weakened strategic positions relative to the U.S. and
U.S.S.R. The prospect of American military �strength� unfettered by
international law is having the same effect on many countries today.
The illusion of military �strength� as a substitute for
international law is becoming only too clear. In 1811, the Duke of Wellington
reported that, although France had 350,000 troops in Spain and Portugal, they
had �no authority beyond the spot where they stand.� How many U.S. officers in
Iraq today would sympathize with their Napoleonic counterparts? And will the
Israeli columns massed on the Lebanese border roll to victory . . . or
current framework of international law has been conscientiously developed with
the collective wisdom of diplomats of many countries over several generations,
based on their experience of the most destructive wars in human history.
Today�s leaders ignore the rules they crafted at their peril -- and ours.
Self-defence is a right that must be exercised legitimately if it is to be
preserved at all.
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