Colonel Liron Libman, Former Head of the Israeli IDF International Law Department, Responds to my Post

Colonel Libman was responding to my post from last Thursday regarding Steve Walt’s recent FP piece. However, I wanted to give Col. Libman’s comment, and my response to it, their own post.  I’ll first copy Col. Libman’s comment as a block quote, and then give my response to it below:

Dear Mr. Joyner. I thought this is a blog about LEGAL issues relevant to arms control. This post does not contribute anything to the legal analysis, and seems more like another chapter of the “save Iran” campaign you seem to engage in persistently on this platform.
The first chapter was titled “Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?” and, at least, had some fair legal arguments, although I had two comments on this discussion:
First, the whole discussion was planted in Jus Ad bellum, presuming that an attack on Iranian nuclear facilities will be the beginning of an armed conflict. This is overlooking the possibility that Iran and Israel are already in war. Just this morning Iran’s proxies in the Gaza strip launched Grad rockets to the Israeli city of Beer Sheva, causing a shutdown of all schools in the city (See this report: http://www.ynetnews.com/articles/0,7340,L-4297621,00.html). And this is not a singular incident. Earlier this month, Iran’s northern proxy, the Hezbollah, sent a drone infiltrating Israeli territory. I need only quote Lebanese ex PM, Mr. Siniora (not a great fan of Israel) that said: “Sending the drone over Israel is not a Lebanese decision, however the move was made at an Iranian behest. Such act needs techniques only available in Iran”. Mr. Siniora further expressed the concern that such an act implicates Lebanon in possible military operations and Israeli reactions.
(The Daily Star, Lebanon News: http://www.dailystar.com.lb/News/Local-News/2012/Oct-14/191353-siniora-hezbollah-drone-sent-over-israel-at-irans-behest.ashx#ixzz2Aa1suZtw )
It is interesting to note that Prof. Dinstein, in his book “War, Aggression and Self-Defence”, discusses the 1981 Israeli raid on a nuclear reactor under construction in Iraq. In his opinion, the attack is justifiable as a continuation of the state of war that had started as a result of the Iraqi invasion of Israel in 1948 and its subsequent pulling out without signing an armistice or a peace treaty. Of course, the situation between Israel and Iran is not identical, but perhaps a similar argument can be made.
Secondly, your comment in the discussion following this post that “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military strikes in Gaza and in the West Bank” has no base in the facts, at least when it comes to Israel. Israel never denied the applicability of Jus In Bello to its armed conflict with Palestinian armed groups, ongoing since 2000. Just check the official Israeli government position paper “The Operation in Gaza – factual and legal aspects”, part III (available at: http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/GazaOperationwLinks.pdf ). Indeed, Israel did deny the applicability of the IV Geneva Convention in the territories it occupied from Egypt and Jordan in 1967, but this had nothing to do with the rules on the conduct of hostilities.
The next chapter in this “save Iran” crusade was “The Myth of Surgical Strikes on Iran’s Nuclear Facilities”. I will presume, for the purpose of this discussion that the figures quoted of possible Iranian civilian casualties because of a strike are realistic, although they do not seem to come from impartial sources. However, one cannot draw such unequivocal conclusions about illegality of an attack in Jus in Bello just based on potential civilian casualties. The rule of proportionality is about the RELATION between civilian casualties and damage to civilian objects and the military advantage of the attack. Only when the civilian toll is excessive in relation to the military advantage, is the attack illegal. You have not considered the anticipated military advantage Israel or the US might see in such an attack. Maybe a hint can be found in the words of former Iranian president Hashemi Rafsanjani . In a speech in 14 December 2001, he warned that if Muslims possessed nuclear weapons, “the attitude of global arrogance would have to change”. He added that “the use of even one nuclear bomb in Israel will destroy everything, whereas [a nuclear explosion] would only harm the Islamic world” (available at: http://www.cer.org.uk/sites/default/files/publications/attachments/pdf/2011/wp513_eng_iran-1512.pdf ). And this is considered to be an Iranian “pragmatist” and “moderate” leader.
Just to clarify, I do not necessary think that a military strike on Iran’s military nuclear program, either by the US or by Israel is a good idea. In any case, it can only be a last resort. However, if your legal position is that Israel cannot act before an Iranian nuclear warhead is about to be launched against it in the name of holy Jihad, I suggest you check again your fundamental understanding of law. As the former president of the Israeli supreme court, Aharon Barak, once said : “A Constitution is not a prescription for national suicide” (“The Judge in a Democracy”, 2006, Princeton University press, p. 291). I think it is true for law in general and for international law, too.

Dear Colonel Libman, I cannot help noting the profound irony of the chief international lawyer for Israel’s military – someone who is paid to convince the world that whatever Israel does is legal – accusing me of political bias in my legal analysis.

I certainly won’t apologize for bringing attention to Steve Walt’s article. Unlike you, I don’t see it as a part of a “save Iran” campaign, but as a part of a “let’s think about this rationally and not go to war” campaign. I recommend its reading, and its thinking, to you.

With regard to your legal arguments, I note that you use the non-technical term “state of war” when making your jus ad bellum arguments. I suspect this is because you know that trying to claim that there is an actual armed conflict – the only relevant legal term – in existence between Israel and Iran, would be unpersuasive according to the jus in bello and the relevant facts. There is no armed conflict in existence currently between Israel and Iran, and to claim that there is is just grasping at straws in an unpersuasive attempt to do your job – convince us that whatever Israel does is lawful.  Lawyers for the USG, particularly during the bad old Bush years, have similarly tried to argue that the US is in some kind of eternal state of war with a method of violence – terrorism – and with anyone (names to be continually added) that the USG thinks employs that method of violence against the US or its allies. That argument of a continuing legal war on terrorism, which is of course intended to legally justify anything the USG wants to do anywhere in the world that has any connection to terrorism, no matter how strained the connection – has been similarly unpersuasive to international legal scholars.

When I made the statement that you quote about Israel denying the applicability of the jus in bello to strikes in the West Bank and Gaza, I was indeed referring to Israel’s repeated erroneous denial that Geneva Convention IV applies to the West Bank and Gaza, and its continued argument that these are not occupied territories under the jus in bello. I understand the distinction you are making with regard to conduct of hostilities, and I concede that to be more correct I should have replaced the word “strikes” in that sentence with “occupation,” so that the sentence would have read “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military occupation in Gaza and in the West Bank.” The overall point I was making in that sentence, in context, which was clarified by the hypothetical I spelled out in the next paragraph, is that, like the US, Israel has gone to great lengths whenever possible to try to limit its exposure to the law of the Geneva Conventions, and might be expected to do so again in the context of a strike against Iran. Israel’s repeated denials of the applicability of GC IV to the West Bank and Gaza, and denial that Israel has the legal duties of an occupying power – arguments that have been thoroughly discredited by the International Court of Justice and the vast majority of academic commentators – are certainly proof of these efforts.

Now with regard to your comments about the anticipated military advantage of attacking Iranian nuclear facilities, and the potential for this military advantage to outweigh, under proportionality analysis, the very significant civilian casualties that would be caused by the release of dangerous forces from these attacks, which as I and Marco noted in the post and comments, is the subject of both treaty and customary international law establishing an exceptionally high standard of care for the attacking force.

The question of military necessity is of course a complicated one, as is the question of actually applying the proportionality test as between military necessity and civilian protection. I tell my students that it’s kind of like comparing apples and anvils. As it happens, we are very honored here at Alabama right now to have President Aharon Barak visiting with us and teaching a short course. And I had the privilege today of having lunch with him. I mentioned our exchange to him, and we talked about questions surrounding this issue, including whether military necessity in IHL is essentially a subjective determination on the part of military officials, or alternatively whether it is essentially an objective determination that can be reviewed by courts of law and in other legal fora.  And even if it is an essentially objective determination, to what extent should the law defer to military officials’ determination of military necessity?  I found the conversation very enlightening. His view was that military necessity is essentially an objective determination that can be reviewed by courts and judges, and he said that as a judge he didn’t give any deference to military assessments of military necessity over others’ assessments of military necessity. And he said further – and I found this point particularly analytically helpful – that governments bear the burden of proof of military necessity. I think this principle has very useful application to IHL situations, and places the burden for establishing military necessity on the shoulders of the attacking military.

There is of course a long history of disconnect between Israeli military and civilian officials on the one hand, and the broader international legal community on the other, on questions of international humanitarian law, including the question of military necessity and proportionality balancing.

We have seen this disconnect play out so many times in the judgments of the International Court of Justice; in the assessments of investigating groups sanctioned by international organizations including the United Nations; and in the assessments of respected non-governmental organizations.  Israel will claim that military actions in the West Bank, Gaza, or Lebanon are justified by military necessity; but international jurists and other international investigators will subsequently assess these claims to be legally incorrect, in light of countervailing legal considerations of human rights, as protected by international humanitarian law, and embedded in the IHL principles of proportionality and discrimination. Examples of such occasions include the ICJ Wall Advisory Opinion, the Goldstone Report, the van Kappen Report on Qana, and Amnesty International’s reports on the Gaza Blockade and on the 2006 Lebanon campaign.

So often in these cases, Israeli officials’ subjective assessment of military necessity and its proportional relation to anticipated civilian casualties, simply doesn’t convince international jurists and investigators from other countries, who feel they are able to look at the facts and the law in a more objective light, and apply the law objectively to produce a correct result.

Now, who is “right” in the context of these disagreements between Israeli officials and the international community is a complicated question, and one that I have thought a lot about. I was going to say something on this subject here, but I think I’ll have to save it for another day.  I’ll rather limit myself here to saying that I see this same phenomenon happening now in the case of threatened Israeli attacks on Iran’s nuclear facilities.

From a military advantage perspective, attacking Iran’s nuclear facilities – including conversion, enrichment and fuel fabrication facilities – appears to most in the international legal community to offer no appreciable military advantage in itself. There is simply no real evidence that Iran is using these facilities for military purposes. This has been established over and over again by Western intelligence agencies. The idea that Iran might, at some indeterminate time in the future, take the decision to use these facilities as part of a military nuclear program, appears to be a suspicion in the minds of Israeli officials that has no real basis or support in the observed behavior of Iran (not just in the incendiary words of some of its leaders), or in any actual evidence regarding Iran’s nuclear program. With the burden of proof resting upon its shoulders for demonstrating military necessity, these facts will make satisfying this burden impossible for Israeli officials. I know very well that you will disagree with the assessment I have just made. But that is precisely my point. There is a longstanding, and continuing disconnect at work.

And even if one does look ahead to some possible military use of these nuclear facilities in the future to find a military necessity for attacking them now, it is well understood that destroying Iran’s known nuclear facilities now would only set Iran’s nuclear program, whatever its character, back a few years – it would not permanently destroy Iran’s program. And in terms of other factors that should also be influentially weighed in calculating military advantage, there is also an increasing awareness that an attack on Iran’s nuclear facilities would actually likely work as a catalyst to Iran’s development and manufacture of a nuclear weapon, and to its withdrawal from the NPT.

All of these factors, taken together, appear to most in international legal community to produce no military advantage from an attack on Iran’s nuclear facilities. Indeed quite the opposite. I think this is how the international legal community overwhelmingly views the prospect of such an attack, and how international jurists and investigators would assess the military advantage factor in a proportionality analysis under international humanitarian law.  You can see, then, how this assessment of military necessity wouldn’t even come close to the IHL standard necessary to legally justify such an attack on targets that would release dangerous forces, likely resulting in thousands of civilian deaths.  Thus, I am quite confident that the ICJ and other international jurists and investigators would concur with my and Marco’s view that such attacks would be unlawful.

Again, I know that this is not how you would view and assess the military advantage of such an attack, as you’ve said. And therein lies the disconnect that is my overall point here. And again, I’m sure we could go back and forth for hours about who, as between Israeli officials and international lawyers outside of Israel, is right in their assessments of the relevant criteria, and their proportionality with each other.

But I do think it is important to emphasize that the determinations and legal analysis under IHL must remain objectively applied by the international legal community.  If not, and if every attacking state is to be given deference in their subjective determinations of military necessity and the proportionality and discrimination tests, IHL would be rendered completely moot and incapable of fulfilling its primary purpose, which is to restrain the methods, means, and choice of targets of militaries during armed conflict, in order to impose a modicum of civility on this most uncivilized of human activities.

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22 Comments on “Colonel Liron Libman, Former Head of the Israeli IDF International Law Department, Responds to my Post”

  1. Cyrus says:

    The threatened sites in Iran all operate under IAEA safeguards, and have no military significance.

  2. yousaf says:

    I would be curious to hear of Col Libman’s assessment of UK’s decision re. legality of attack:

    http://www.guardian.co.uk/world/2012/oct/25/uk-reject-us-request-bases-iran?CMP=twt_gu

  3. yousaf says:

    I also highly recommend the 2005 [i.e. back when it was thought Iran may have a nuclear weapons program, something we now know it does not with "high confidence" according to the DNI] US National Defense University booklet “Reassessing the Implications of a Nuclear Armed Iran”:

    http://www.ndu.edu/inss/docuploaded/McNair69.pdf

    This 2005 NDU study concluded that Iran possibly desired nuclear weapons mainly because it feels strategically isolated and that “possession of such weapons would give the regime legitimacy, respectability, and protection.”

    In other words, it was thought that Iran desired nuclear weapons for the purpose of deterrence, just like every other nuclear-armed nation.

    The NDU study continued, “[W]e judge, and nearly all experts consulted agree, that Iran would not, as a matter of state policy, give up its control of such weapons to terrorist organizations and risk direct U.S. or Israeli retribution.”

    And it said the “United States has options short of war that it could employ to deter a nuclear-armed Iran and dissuade further proliferation.”

    Again, this was written in 2005 back when it was thought Iran may have a nuclear weapons program, something we now know it does not with “high confidence” according to the DNI.

    One sensible way to approach the Iranian nuclear issue would be to work seriously toward confidence building and eliminating nuclear weapons from the entire Middle East.

  4. Richard H. says:

    Mr. Libman’s legal arguments are unpersuasive, to say the least. Coming from an Israeli government lawyer, and from someone who probably has access to some quality intelligence on the topic, this is a bit disappointing.

    Three short points:

    1) Mr. Libman fails to illustrate how, and under which test actions of the Palestinian Islamic Jihad and Hezbollah can be attributed to the Government of Iran. Nicaragua’s “effective control”? Tadic “overall control”? It is a well established fact that both of these organizations get significant funding from Iran. It is a whole another thing that Iran points fingers and directs each and every attack against Israel. On the contrary, the Iranian government is known to be a very stand offish player in that regard. I.e. recent International Crisis Group report sheds some light on the Iranian funding of HAMAS in the past, which always was unconditional. Hezbollah went on record numerous times saying that it may not necessarily join any upcoming conflict between Iran and Israel. To be fair, Hezbollah has always been a bit more independent from Iran than PIJ.

    2) If an unarmed drone overflight over a particular country is a casus belli, I have some bad news. USA and Iran has been in a state of war since the RQ-170 Sentinel crash months ago.

    3) The bombing of Osirak analogy, Dinstein’s example is a bit of a stretch. Prof. Dinstein is an eminent scholar, but for anyone who actually took time to study his works, his pro-Israel leaning and interpretation of international law might border on unreasonable. Let’s say Japan bombs Moscow tomorrow. Do we expect them to go to the UN Security Council and justify their attack under jus ad bellum with the fact that they never signed a peace treaty with Russia after 1945? After 70 years, really?

  5. Dear Prof. Joyner,
    Thank you for “upgrading” my humble comment to a post and for taking the time and effort for a lengthy respond to it. I am almost flattered you even bothered to check my background, although I presented myself by name only.
    However, here I have to correct you: indeed, I was Head of International Law Department in the Israeli Defense forces, but nowadays I am an un-affiliated civilian with an interest in international law. My views are in my personal capacity, which is my only capacity these days.
    I am very proud of my military career. However, I never viewed myself or was viewed by the military command I advised as “someone who is paid to convince the world that whatever Israel does is legal” as you phrased it. My primary responsibility was to assist the military to conduct its operations according to international law. I was never asked, after the fact, to defend something I thought was illegal and that was done without consulting us or against our legal advice. Actually, I elaborated my views on legal advice in a conduct of operations in an article recently published in the Military Law and the Law of War Review (http://www.mllwr.org/). After reading other military lawyers’ contributions on this subject to this volume, I do not feel “disconnected” at all.
    Furthermore, as a civilian in a democratic state, I have the liberty to express critical views in public, a right I enjoy to exercise (not to burden you with a more thorough background search, check this, almost correct report: http://www.haaretz.com/news/diplomacy-defense/ex-idf-legal-expert-world-s-take-on-israel-s-west-bank-operations-saps-our-self-defense-1.471599).
    I feel uncomfortable to write about myself, but since you chose to start your response with the ad hominem remark I mentioned, I had to. I did not refer to anything but the content of the posts you wrote, specifically and as a whole, so I really think this remark was not fair.
    Steve Walt’s article simply does not have any legal value (I did read it). It is a policy argument and there are many counter policy arguments. I did not understand why you posted it in a blog you dedicated to legal aspects of arms control. Actually, in your response you admit that this is a political view, you just reject the phrase “save Iran” campaign I used and prefer to call it “let’s think about this rationally and not go to war” campaign. Perhaps, my choice of words was too blunt, for this I apologize.
    A last word about non-legal issues: I will gladly join your campaign against war, on one condition: that if eventually it will turn out that the lessons of Munich were more relevant than the lessons of Versailles, we will switch places. I promise you I have a very nice house, just 40 km from Tel Aviv and about the same distance from Gaza.
    As to the matter itself, I am afraid in the present context it will be appropriate to address just a few points, and shortly. I hope we will have an opportunity in the future for further discussion.
    The existence of an armed conflict between Israel and Iran: I did not say that there is an armed conflict, just that this POSSIBILITY should be explored if you wish to have a comprehensive analysis of the issue. That being said, I did give a few concrete examples of recent armed attacks and use of force by Iranian proxies against Israel. There are many more. I do not see the resemblance to the criticized vague concept of the “war on terror”. We are considering a specific state and specific acts. If, as published, the UK AG thinks that letting the US use British bases will attribute responsibility for an attack on Iran to the UK, shouldn’t Iran be concerned that it’s present very active material and operational support of attacks against Israel create the same responsibility? As you probably well know, the existence of an armed conflict in Jus in Bello is not dependent on formal declarations or recognition of a state of war (common article 2 of GC).
    As to Israel’s position regarding the applicability of Jus in Bello in the Palestinian context, you have partially corrected your statement and I really appreciate it. Just another little clarification is needed: Israel did not deny the existence of occupation in the west bank, or the applicability of Jus in Bello rules on this issue: the 1907 Hague regulations (articles 42-46) were always the legal framework for the military administration there. What was denied is the applicability of just one part of the relevant corpus of law: GC IV and even here, practically and as a policy decision, the government of Israel stated it would respect the humanitarian rules contained in this convention and the Supreme Court often held it to implement this obligation.
    As to the question of proportionality and military advantage: again, I indicated the flaw of not even considering military advantage in relation to the civilian toll before passing a “judgment” of illegality of a possible strike. I am aware of the arguments you raised about a limited effect a strike may have on Iran’s military nuclear capacities, perhaps you are right, but I guest neither of us, in this point in time, have the full factual data necessary to pass a judgment.
    You are indeed very lucky to host President (retired) Barak. I have witnessed personally that in the matters coming before him he always listened to the military’s professional assessment, but never saw it as a final word closing the matter. I think so it should be. However, there is a difference between litigated matters, such as the appropriation of private property for the building of a security fence and the decision to attack a certain target in war. In the first instance, the judge is the one making the balance between military necessity and humanitarian concerns. In the second instance, the military commander (in critical cases, the commander in chief) will make the decision. In some case, tribunals may have to evaluate the decision after the fact. However, even an objective review must look at what the military decision-maker knew in “real time” and not with the benefit of hindsight. Furthermore, the decision maker has some margin of appreciation: an attack is not illegal if you think the collateral damage outweigh the military advantage. It is illegal only if it is excessive in relation to the civilian toll. Furthermore, it is a war crime only if it is “clearly excessive” in relation to civilian casualties (see ICC statute).
    To return to the words of your distinguished guest, President Barak: “As a judge, I have always felt that when I sit on trial, I also stand trial” (this is my translation. You can actually hear these words, in Hebrew, here: http://www.youtube.com/watch?v=1WiwZta6D3A )
    I hope all “objective” observers passing judgment on others in complex situations will be that humble.
    I will stop here, not to draw too much on your hospitality.
    Best regards,
    Liron A. Libman

    • Dan Joyner says:

      Dear Colonel Libman,
      I acknowledge that you only identified yourself by name, and I then looked up your bio. None of the bio sketches I found mentioned an end to your post with the IDF, and that’s why I titled my post as I did. In light of your correction, I have amended the title of the post.

      We may have gotten off on the wrong foot a bit. My interpretation of your initial comment was that it was fairly critical, and not just on substantive matters, but also leveling the personal claim against me of engaging in a “save Iran” campaign. I’m sensitive about accusations of bias, and I’ve had some run-ins lately with people who are less collegial and thoughtful than you on this point (see my exchanges with David Albright and his friends in earlier posts).

      I’m always much more interested in collegial, substantive discussion of issues than I am in contention with people. I’m an academic lawyer, and I’m used to disagreements on substance and lively discussion about these disagreements with colleagues. So I welcome collegial, substantive discussion with people who disagree with me. And in that vein, I welcome and acknowledge the information you provide about your role at the IDF and your own writings about this role, which I recommend to all readers. I’ve also had a look at your blog, and found a very thoughtful piece there regarding Egypt’s new president that was published in the Jerusalem post. So you clearly are someone of character and substance who, I’m sure, was an asset to the IDF.

      I have a dear friend here in Alabama who is Israeli, and we often have long discussions about Israel’s challenges and how the state has responded to them. And I give full weight to the observation that those of us who don’t live in Israel can’t fully appreciate the problems Israelis face and the choices you have to make as a nation. So I get a lot out of our conversations. I do also hope that conversations like those I have with my friend, and those which we outside of Israel have with other Israelis like yourself, can also be two way streets. I don’t think that we outside of Israel have nothing of value to say about the choices Israel makes in responding to its challenges, at least from a legal perspective as we have been discussing. The flip side of being faced daily with the on-the-ground challenges Israel experiences, is that it might be difficult for Israelis to at times put themselves in the shoes of others involved in these problems, for example Palestinians and Iranians. So I hope that those of us not directly experiencing the problems can play a role of helping those who daily see only trees, to see not only the wider forest, but also the trees that others in the forest see, to torture a metaphor.

      Briefly on such matters of substance, I do recommend Richard’s comment above on issues of attribution and state responsibility with regard to Iran and Hamas and Hezbollah. I know this could be considered a fine and technical legal point, but it is an important one.

      Let me just also put a plug in here once again for what I feel is the only way the Iranian nuclear crisis can be settled without war, and that is through a negotiated settlement that looks something like the settlement outlined by Pierre Goldschmidt earlier this year. Here’s a link to his piece and a really useful hypothetical dialogue he wrote up to illustrate it. I also made comments at the time in the comments section to the post.

      http://lewis.armscontrolwonk.com/archive/5022/goldschmidt-on-iran

      I hope that you will feel welcome and encouraged to join in the dabte here at ACL on a regular basis. I would also be happy to discuss your writing guest posts here from time to time if you would be interested, so that I and other readers can benefit from the perspective of someone with your experience.

      With best wishes,
      Dan Joyner

  6. [...] Lately, I sent a comment criticizing some of the points made there, and received a very "warm" welcome. You can see the latest post with my comment, prof. Joyner's response, and my answer to this response here:  http://armscontrollaw.com/2012/10/29/colonel-liron-libman-head-of-the-israeli-idf-international-law-… [...]

  7. Dear Prof. Joyner
    Thank you for the invitation to your blog. I will be happy to contribute to the legal discussion in this important field. I certainly agree with you that being “close to the fire” or potentially affected do not make one the sole bearer of truth and wisdom. Indeed, I know very little on NPT procedures or IAEA decisions and learned from your posts many new things.
    As to the matter at hand, I agree Richard asked good questions. I am sorry to disappoint you, Richard, but I currently do not have access to “quality intelligence”, just open sources like the rest of us. However, I can try to comment on the legal issues you raised.
    Attribution of State responsibility – Indeed, a very vague field. I am aware of ICJ Nicaragua case stringent test (and you can add, later, the Bosnian Genocide case reiterating this test and rejecting the more loose “overall control” test in the ICTY Tadic case). I think Hezbollah and PIJ actions will certainly attribute responsibility to Iran under the overall control test, since Iranian involvement is not mere support by providing equipment or financial support but rather manifest itself by coordinating and helping in the general planning of its military activity. PIJ (which is responsible to a large part of rocket launching from Gaza the last years) may even be considered completely dependent on Iran, to fulfill the ICJ test for state responsibility. However, what about the post 9/11 practice? Was the Taliban regime in Afghanistan specifically directing the Al Qaida attacks on the US? It was not the claim. Rather, the justification offered was that the Taliban regime in Afghanistan harbored Al Qaida bases in its territory and generally aided them. The Security Council expressly acknowledged US right to self-defense and tacitly accepted US exercising this right against Afghanistan. Thus, some scholars understood the events as a shift in the law of state responsibility towards a criterion even more relaxed than that of the Tadic case, signaling that harboring and aiding a terrorist organization is enough to attribute its actions to the supporting state.
    Anyway, I think it is important, when considering state responsibility for non-state actors actions, to remember the warning of the ICTY in the Tadic case: to be aware of possible intention to mask the control of the state over the armed group and therefore, not to take at face value ostensible structures and overt declarations, but rather to engage in a nuanced analysis of the reality (para. 154).
    Unarmed drone overflight as a casus belli- Richard, you are right, of course, that not every use of force is considered an “armed attack”. However, it does prove the close coordination between Iran and Hezbollah needed by the Tadic test: just yesterday, an Iranian legislator told the press that Iran has aerial photos of sensitive Israeli military installations taken by this drone (see here: http://world.time.com/2012/10/29/report-iran-has-drone-pictures-of-israeli-bases/ ). As to an “armed attack”: I did refer to the rocket launching from Gaza. Aren’t about 800 rockets and mortar shells just this year enough to be regarded “an armed attack”? (see: http://en.wikipedia.org/wiki/List_of_Palestinian_rocket_attacks_on_Israel,_2012 ).
    As to the ongoing armed conflict argument: Maybe I unintentionally misled you: 1948 was not the last time there were active hostilities between Israel and Iraq before the strike. In the 1973 war, less than 8 years before the Osirak raid, a large Iraqi force was fighting alongside the Syrians in the Golan front (see this abstract: http://www.tandfonline.com/doi/abs/10.1080/09592310008423287). Therefore, speaking about a bit of a stretch, comparing this to the 70 years calm between Russia and Japan is a good example, in my opinion. Moreover, in this sense, the Iranian case is much easier: if you pass the attribution hurdle, I am talking about things happening this week!

  8. Johnboy says:

    I have to say that my eyes started glazing over riiiiight about here…..
    “This is overlooking the possibility that Iran and Israel are already in war.”

    The esteemed colonal must know that the correct term is “armed conflict”, not “already in war”.

    Q: Is there an armed conflict between Iran and Israel?
    A: No, none whatsoever.

    And then he followed up with this….
    “Just this morning Iran’s proxies in the Gaza strip launched Grad rockets to”….

    Yeah, that’s the funny thing about “proxies”, isn’t it?

    As in, you use them INSTEAD OF engaging in an armed conflict yourself.

    Which leads us back to….
    Q: Is there an armed conflict between Iran and Israel?
    A: No, none whatsoever.

    Q: What about Hamas!!!!
    A: Well, what about them…..

    Q: What about Hezbollah!!!!
    A: Well, what about them…..

    Man, is this the best the Israelis can come up with?

  9. Erkan Akdogan says:

    Reading the posts under this title, let me assert, is a puzzling experience (cf. D.Kennedy’s usage, in a different context, for the UNCLOS).

    Israel, herself, is not a State Party to NPT and has a safguards agreement with IAEA (lacking Additional Protocol or any other agreement etc.). However, Iran is a State Party to NPT and under strict control of IAEA though (as far as I know) the Additional Protocol with Iran has not yet entered into force nor has not been complied with by Iran in full. Israel is suspected to develop nuclear weapons, however there is no clear indication (as far as I know). For Iran, the situation is similar. IAEA and int’l community suspects hostile intention of Iran, but there is no clear evidence as to show Iran is developing a nuclear weapon, except (rather political) statements of Iranian top officials. The conflict between the two, if any, cannot be legally formed upon alleged development of nuclear weapons by Iran. Furthermore, the conflict and crisis in between relevant states and parties, in general, seems complicated, complex and defragmented.

    In the present state of affairs, a strike directed at Iran’s so-called nuclear facilities would be a clear breach of international law. There is much consensus on this point. The reason is simple: the only legal ground for Israel to put forward shall be self-defense under Article 51 which requisites an “armed attack” (cf. wording in Article 2(4) thereof which mentions threat or use of force) occured against Israel. Furthermore, even if we assume that Iran develops a nuclear weapon, this would require the evaluation and decision by Security Council, not Israel or any other State herself. In ICJ’s words (in a different context of course), the contrary interpretation would mean that Israel places itself on the plane of international law. But, wait, what would be the result? Destruction of a facility or more, giving harm to civilians, giving unnecessary damage to non-military objects? Reversely, what would happen if Iran develops a nuclear weapon and SC lacks any decision under Chapter 7?

    What happened/happens/will happen to the principles of int’l law?

    The international legal order, if any, presupposes and recommends the international peace and security, and, collective security system is designed to prevent any agression, threat to or breach of the very same concept if it is operated following a political process. In such a case, [imminent/permanent...] “military necessity”, “military advantages of an attack” etc. on the one hand, “humanitarian considerations”, “international peace and security” etc. on the other hand seems to be in an inevitable circularity. But, one does not exclude another in our assertations though it is impossible to sustain the two at the same time.

    The int’l legal order lacks a Themis. Therefore, what prevents Israel from strike/strikes against Iranian nuclear facilities is clearly not (and, in other words, “cannot be”) international law, but, perhaps the attitude of her so-called allies, e.g. United Kingdom (please refer to above message #1 by yousaf), if we take Israeli history in Mid-East into consideration. In the meantime, Syrian conflict endures, Iraqi restoration worsens and has been threatened, Egypt, Libya, Tunisia et al mutates and turns to radicalism. Israel may be right on the point that the question at-hand to be resolved in a general and comprehensive way, but, the rightness of Israeli’s positions seems to end at that point, too. The reverse is true, or maybe, truer for other states in the region either.

    As a result, the Mid-East states lack communicative action; the peoples of the region continues to suffer, in particular, Israelis (from terrorism) and its Arab neighbours (from armed conflicts) (also cf. ICJ’s Wall Opinion et al).

    Thank you.

  10. Bibi Jon says:

    ” incendiary words of some of its leaders” was in fact in agreement with Prof. Walt
    =============================================================

    Colonel Liron Libman says:

    Maybe a hint can be found in the words of former Iranian president Hashemi Rafsanjani . In a speech in 14 December 2001, he warned that if Muslims possessed nuclear weapons, “the attitude of global arrogance would have to change”. He added that “the use of even one nuclear bomb in Israel will destroy everything, whereas [a nuclear explosion] would only harm the Islamic world”. And this is considered to be an Iranian “pragmatist” and “moderate” leader.

    From http://www.jeremyrhammond.com/2010/08/26/turning-back-from-the-point-of-no-return/

    We are thus supposed to believe this constituted an Iranian threat of nuclear attack against Israel. Again, the actual context of Rafsanjani’s remarks is not irrelevant. The words come from a speech in which he criticized Zionist crimes against the Palestinians, and U.S. support for those crimes. He emphasized that the struggle was not against the Jewish people, but the ideology of Zionism: “There are many Jews who don’t believe in Zionism. There are many Jewish scholars in America who have been active against these events.” He also observed that many Zionists are not Jewish. Discussing how Israel came into being, he said that the West supported the Zionist project to further its own colonialist and imperialist goals. “They have supplied vast quantities of weapons of mass destruction and unconventional weapons to Israel”, he said, including nuclear weapons. He then suggested that the Islamic nations might themselves seek nuclear weapons as a deterrent to Western imperialism and Zionist aggression: “If one day, the Islamic world is also equipped with weapons like those that Israel possesses now, then the imperialists’ strategy will reach a standstill because the use of even one nuclear bomb inside Israel will destroy everything. However, it will only harm the Islamic world. It is not irrational to contemplate such an eventuality.” Suggesting he was referring to nations other than Iran when referring to “the Islamic world”, he added, “Now, even if that does not happen, they can still inflict greater costs on the imperialists” (emphasis added). He referred to the then recent terrorist attacks of September 11, 2001 and explained: “We cannot encourage that sort of thing either” (emphasis added). In other words, he was not encouraging terrorism against the West or nuclear proliferation: “I am only talking about the natural course of developments [just as Prof Walt is talking about natural tendencies]. The natural course of developments is such that such things may happen.” Additionally, Rafsanjani noted the U.S. role in supporting Israeli violence against Palestinians, and said that the 9/11 attacks “can be a lesson for the Americans, particularly today, when, due to their aggressive moves and their mistakes, they have paved the way and made it possible for some groups to be armed with non-conventional weapons”. He added, “I would like to admonish the Westerners not allow to matters to go this far” [sic], that “They should not allow a situation of confrontation and antagonism”.[14]

    Thus, Rafsanjani was explicitly arguing against a situation wherein “the Islamic world” also possessed a nuclear weapon; he was merely making the point that if the West persists in its complicity in the oppression of the Palestinian people that this could very well come to be. It would be unfortunate if it came to that, in Rafsanjani’s view. But this does not stop Goldberg [former IDF prison guard, or Colonel Liron Libman] from quoting Rafsanjani out of context in order to imply, falsely, that he was making an explicit threat of nuclear attack against Israel.

  11. Dear commentators,
    Maybe I am old fashioned or even outdated, but I feel strange to address nicknamed personas. I feel the discussion is always more serious when people do not hide. However, I will leave my comfort zone this time, but will give priority to the gentleman identifying himself with his full name:
    Mr. Akdogan – If I understood you correctly, you point to many conflicting interests and factors, uncertainty about developments (the turmoil in the Arab world), to the fact that the int’l legal order lacks a Themis and to the fact that, as always, the peoples of the region pay the price. I can agree with you on that. I am less sure about the rest.
    Mr. Johnboy – your style brings to my mind comics, and I am saying this in a positive way – you made me smile. However, may I presume you missed my previous comment on state responsibility and attribution? You are right that the Idea of working through proxies is not to leave “fingerprints”. Sometimes it works somtimes not. Look at the Tadic case. I am sorry reading my comments made you disappointed about Israelis ability. I urge you not to be – I am only representing myself and I am sure there are more capable Israelis to satisfy your high expectations.
    Mr. Bibi Jon – Thank you for sharing a wider context of Rafsanjani’s speech. Though you did not share the reference for this, I will presume it is full and accurate. However, maybe being so busy with the speech, you missed the context in which I brought it: Not as a threat by an Iranian leader to nuke Israel, (It would have been stupid of them to declare such an intention) but rather as an expression demonstrating a correct understanding of Israeli geopolitical vulnerability, thus illustrating the significant military advantage Israel might have in neutralizing Iran’s military nuclear capabilities, in the jus in bello proportionality assessment.
    That being said, I find the part you brought from Rafsanjani’s speech where he “emphasized that the struggle was not against the Jewish people” chillingly cynical. In 1994, a Jewish Community center in Buenos Aires was attacked, killing 85 people in and around the building and wounding more than 300. The Argentinian AG’s investigation determined that the decision to bomb the building had been made by the leadership of the Iranian regime. An Argentinian Judge issued international arrest warrants for seven people involved, including former Iranian President, Rafsanjani. see here: http://www.terrorism-info.org.il/Data/articles/Art_20318/E_061_12_1444742692.pdf ).
    Perhaps a lesson on the difference between what Iranian leaders say and what they do (and really think). This is not irrelevant to the question of the Iranian regime nuclear intentions.

    • Erkan Akdogan says:

      Dear Mr. Libman,

      Thank you for your comment.

      I’d be grateful if you let me clarify “the rest”: the distinction between jus ad bellum and jus in bello is a somewhat circular, if not, at least, challenging for the international legal order itself, in particular the so-called law of armed conflicts. (We, at least there are some who, try to define such concepts by referring to the other.)

      The case of nuclear weapons is a classical example: in terms of UN Charter, by denying and banning recourse to force of states (Art. 2/4), whereby accepting an exception/exceptions (violence or force) (Art. 51) with regard to different interpretations, the int’l legal order allows the recourse to force. Once allowed, it is to be regulated (cf. e.g. D. Kennedy along with I. Brownlie). The States, in general, and the ICJ (though outlawing in general and legalizing, let’s say, in an extreme case of self defense where “the very survival of a State would be at stake”) allows the threat or use of nuclear weapons, although corpus of int’l law (inter alia NPT, IAEA Statute and other int’l treaties and instruments along with, rather indefinite, customary int’l law) might be interpreted (as done by the ICJ in general in its opinion bearing in mind the exception referred above) as prohibiting the nuclear weapons. The ban and use (in our example, of nuclear weapons) lives together in a somewhat itchy and undefined way. There are those who posses it legally, who do not possess it, who we suspect to possess illegally and who may possess it in fact (by excluding themselves of the nuclear regime, e.g. North Korea) etc.

      Furthermore, there are lots of problems as to specify a State’s intention, if a State may have an intention and if it is possible to identify. What would we give preference, the statements or acts of a particular State or the understanding of others? Is it really possible to objectively define a State’s subjective intention? If we look at facts, we would never be sure. As we all know, facts change, and they are mixed, unstatisfactory, even contradictory, in general: E.g. how should we attribute Rafsanjani’s statement to Iran and condemn her as a whole (in particular her people)? To sum up, qualifying an intention as peaceful, hostile, nuclear, or otherwise (cf. IAEA investigations and other means of verification) requisites clear standards which any of us cannot deny: unfortunately they do not (or cannot) exist in our world (cf. Koskenniemi in general).

      In my opinion, NPT and IAEA system as a whole, institutionalize and regulate the nuclear weapons in such a way that total abolition and general and comprehensive ban of nuclear weapons seems an utopia, in its perfect sense (cf. e.g. the ongoing debate on entry into force of CTBT, or recent US/Russian statements as to implementation of arms control regime in bw the two States).

      Therefore, to admit as an apology, at a legal level, armed conflicts cannot be prevented (unfortunately, we cannot prevent it): it is no surprise that 20th century is the most destructive regarding the whole history of humankind (cf. e.g. Charles Tilly) though UN Charter system and, the concepts of Cold War and arms control et al. In our case, it is almost impossible to define how, who argues what against whom?

      Furthermore, most importantly, in our case, what is the place of the suffering people in the region in int’l legal order, and what is international law for?

      Such questions remain and will remain unanswered until a different solution would be found, but this solution cannot be unilateral decisions imposed on others.

      Thank you all again.

    • Bibi Jon says:

      Dear Col. Liron A. Libman,

      The link to the full transcript of the speech was embedded in Jeremy Hammond’s piece. For your convenience, here it is: http://www.globalsecurity.org/wmd/library/news/iran/2001/011214-text.html

      You will notice that the transcript was translated by BBC Worldwide Monitoring, and incidentally did not contain your rendering: “global arrogance.” Also missing from your brief quote was Rafsanjani’s reference to the end point as a “standstill,” not mutual destruction.

      As per your intent to highlight Israel’s vulnerability, you chose to also question the rationality of an “Iranian ‘pragmatist’ and ‘moderate’ leader,” In Andrew Grotto’s words:

      “The martyr state view rests on bold, even radical claims about Iran’s goals and behavior that defy conventional expectations of states’ actions. Governments can and have made catastrophic mistakes that have unintentionally led to their downfall, but no government in recorded history has willfully pursued policies it knows will proximately cause its own destruction. Given the novelty of the martyr state argument, its major implications for policy, and how unequivocally its proponents present it, one would expect to encounter an avalanche of credible evidence. Yet that is not the case. References are scarce in this line of writings, and certain references are cited with striking regularity.” (From “Is Iran a Martyr State?” published in Brown University’s Journal of World Affairs.)

      The 1994 tragedy at a Jewish Community center in Buenos Aires is alleged to have had an Iranian connection. This is not universally believed. Please see http://www.thenation.com/article/bushs-iranargentina-terror-frame

      As for Iran’s attitudes to Jewish people, the following material may allay some of your your concerns:

      http://www.nytimes.com/2009/02/23/opinion/23cohen.html

      http://www.guardian.co.uk/world/2007/jul/13/iran.israel

      http://news.bbc.co.uk/go/pr/fr/-/2/hi/middle_east/5367892.stm

      http://www.haaretz.com/news/iran-jews-celebrate-persian-roots-seek-to-maintain-shrinking-community-1.239413

      http://mondoweiss.net/2009/02/a-rabbis-reflection-on-iran.html

      http://rabbibrant.com/2009/02/23/the-jews-of-iran-beyond-the-rhetoric/

      As to the only relevant (to this legal site) point , you write that you were “demonstrating a correct understanding of Israeli geopolitical vulnerability, thus illustrating the significant military advantage Israel might have in neutralizing Iran’s military nuclear capabilities, in the jus in bello proportionality assessment.” Why would you cite Rafsanjani’s assessments of Israel’s vulnerability? Surely there are more scholarly assessments, Anthony Cordesman comes to mind.

      If an attack on Iran was to be reviewed in court, would Israel have to convince a panel of jurists that her sense of geopolitical vulnerability itself benefits from proportionality to such realities as her (unacknowledged) possession of second strike capacity and close political/military relations with a superpower who places a premium on her security?

    • Johnboy says:

      “I am sorry reading my comments made you disappointed about Israelis ability.”

      No, sorry, you misunderstood me.

      I was not expressing disappointment with Israel’s “ability”, but with the arguments that Israelis like yourself were putting forward to justify Israel’s policies.

      After all, you *do* appear to be claiming that Israel has a “right” to go Whammer Jammer on Iran at a time and a manner of Israel’s choosing simply because Iran gives material support to Hamas and Hezbollah.

      As far as legal arguments go that appears to me to be a stupendously weak argument.

      I still think so, and I don’t appear to be alone in that thinking…..

  12. Thank you, Mr. Akdogan, for your clarification.
    I wish to thank you, too, Bibi Jon, for the link to Rafsanjani’s speech. It does seem to be a more complete transcript than the extracts from the source I used. However, as an Israeli, please forgive me for not being relieved at all after reading this (long!) speech. Just consider one “jewel” like “finally one day, this tumour in the body of the Islamic world [Israel] will be removed and then millions of Jews who have moved there will be homeless again”. You may say he is just commenting on what he sees as “the natural course of things”. Maybe I watched too many gangsters’ films, but aren’t these lines similar to what a gangster coming to extract protection fees would say? “It will be a shame if your business will be burned”, “such lovely children you have and so many dangers outside”. Wouldn’t a criminal court consider that as a threat?
    However, I will stop here because I am afraid we are moving away from a legal discussion.
    Good night from Israel.

  13. Erkan Akdogan says:

    Hello again.

    I do not want to exaggerate or prolong the discussion, but I find it useful to share with and remind to you on the useful debate held in the UNSC upon Osirag incident in 1981, (S/PV 2288, 19 June 1981) whereby the UNSC adopted Resolution no. 487 (1981).

    for the discussion, http://unispal.un.org/UNISPAL.NSF/0/4AED70BAA0B37B53052567FD00762F30

    for the Resolution, http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/487(1981)

    Thank you.

    P.S. I am deeply sorrowful if this has already been mentioned or the content of this message is a repetition of another.

    • Liron A. Libman says:

      Dear Mr. Akdogan,
      I did mention the raid and Prof. Dinstein view on its legality. I also remember the SC resolution . However, I did not know the protocol of the debate in the SC was available and found it very interesting. Thank you.


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