Israeli Strike in Syria

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.

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34 Comments on “Israeli Strike in Syria”

  1. yousaf says:

    My understanding is that Syria and Israel have been in a technical state of war for a long time — can anyone who knows, clarify that aspect?

    • johnboy says:

      “My understanding is that Syria and Israel have been in a technical state of war for a long time”

      My (incomplete) understanding of international humanitarian law post-1945 is that a “technical state of war” is no longer “legal”.

      The very notion went out of the window with such concepts as the “formal declaration of war” i.e. it is no longer legal to CHOSE to go to war to settle your difference; there is only “armed conflict”, and whether (or not) you are in an armed conflict is interely dependent upon, you know, shootin’ ‘n’ suchlike.

      Israel and Syria fought an “armed conflict” in 1973, and that conflict ended in a ceasefire.

      That ceasefire is exactly what it says it is i.e. both sides agreed to cease firing at each other, however grudging they were about it, and however often one side sneaks in a little niggly-punch under the belt to remind the other not to relax.

      But here’s the rub: if you have agreed to stop shooting at each other then you have agreed that the “armed conflict” has ended.

      Again, that is entirely fact-based i.e. you are either shooting at each other or you aren’t, and if you aren’t then there ain’t no gorram war, “techinical” or otherwise.

      • yousaf says:

        Thank you. I’ve heard that being used as legal cover for the Israeli bombing of Syria’s alleged reactor before.

        Good to have clarification — I’m not a law expert.

        BTW, in that case the IAEA royally screwed up in stating that the U that they found there could not have been from Israeli munitions. True, the U may not have been from depleted U, but it could have been from nat U munitions — something the IAEA completely overlooked — see Kelley’s expert take:

        https://armscontrollaw.com/2013/01/31/robert-kelley-next-steps-forward-for-the-iaea-and-iran/

        “The agency’s claims that the particles are not of the correct isotopic and chemical composition for missiles, displays an appalling lack of technical knowledge about military munitions based on information from questionable sources. If the IAEA is to be respected it must get proper technical advice. For example deep earth penetrating bombs, not missiles were used in Syria.”

      • Johnboy says:

        “BTW, in that case the IAEA royally screwed up in stating that the U that they found there could not have been from Israeli munitions.”

        Well, yeah, I never understood the finality with which the IAEA dismissed the Syrian explanation for those findings.

        As far as I can tell they decided that some of the Uranium that was detected contained “transuranic elements” and, therefore, could not have been from depleted uranium.

        This always struck me as an odd conclusion to make, precisely because UN-funded studies of the DU munitions that were scattered over Kosovo **did** find some penetrators and jackets that contained “transuranic elements”.

        Apparently (again, this isn’t my area at all) the USA is unique in making DU munitions out of reprocessed uranium, indeed, if you detect “transuranic elements” in a bomb crater then you are pretty much guaranteed that whatever blew the crap outta it was manufactured in the Good Ol’ US of A.

        And where does the IDF get it’s bunker busters from…..?

      • Dan Joyner says:

        I agree with Johnboy’s assessment of state of war and armed conflict here.

  2. Unfortunately nothing is what it seems in the case of the Syrian crisis.

    Without going into my usual long-winded discussion of the reasons for the Syrian crisis, allow me to give you the “short version”.

    Israel does not want an Iran war until the missile arsenals in both Syria and especially Hizballah’s in Lebanon have been degraded enough to make both parties an ineffective actor in an Iran war.

    Degrading Hizballah was the point of the 2006 Lebanon attack which failed miserably due to Hizballah’s superior preparation and Israel’s over-emphasis on air power. At that point Colonel Pat Lang pointed out that the only way for Israel to defeat Hizballah would be to go through the Bekaa Valley. This can only be done by going through Syrian territory and thus engaging Syrian forces.

    IF Syria were ALREADY undergoing attack by the US and NATO, Syrian forces would be unable to engage Israeli forces in large scale.

    The point of the Syrian crisis all along has been to degrade Syria’s military sufficiently to allow the US and NATO to attack Syria, thus allowing Israel to attack Hizballah.

    This is proven by the fact that every single UNSC resolution introduced by the US last year had UN Charter Chapter 7 language in it. This is why Russia and China vetoed those resolutions.

    Then the insurgents fired mortars into Turkey to get Turkey to retaliate in the hopes Syria would retaliate against Turkey. But Assad was too cautious.

    They then repeated the tactic with regards to Israel, but again Syria did not retaliate.

    Then Israel raised the threat of Syria giving Hizballah chemical weapons – which anyone with a brain knows Assad is NOT going to do.

    They they tried to say Assad was using chemical weapons against the insurgents, but that didn’t get sufficient traction.

    So now Israel is taking a more direct hand. All the articles on this strike say that Israel is contemplating further attacks on Syria. Missile shipments have been ongoing from Syria to Hizballah for years. So there is no justification for Israel’s attack now based on that fact alone.

    The goal is to somehow get the US and NATO and Israel (and perhaps Turkey) to attack Syria, thus enabling Israel to attack Hizballah in Lebanon.

    That is the strategic context to be remembered at all times. The end goal is a war with Iran.

  3. k_w says:

    Dan, your statement is somewhat disappointing. You could use the same phrase as an apology for an Israeli attack on Iranian nuclear facilities: breaking the international law but understandable.

  4. Mohammad says:

    “… while it was probably technically illegal, I would have done the same thing under these circumstances if I was the Israeli PM.”

    This sounds like an unfortunate remark from a scholar of law. Perhaps the same could be said with regard to everything on Iran you’ve been writing all these years? (“inspecting Parchin is outside IAEA mandate, but I would push for it if I was the IAEA’s Director General”)
    Are you justifying breaking / sidestepping international law whenever one finds it necessary? Or am I misunderstanding this blog post?

  5. Dan Joyner says:

    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.

    • Mohammad says:

      Thank you for the clear explanation.

    • The problem with such a view is that then ANY country can claim “exceptional circumstances” to justify a violation of the law. Isn’t the whole point of Law, to be binding equally on everyone?

    • johnboy says:

      Dan,
      Just assuming for argument’s sake that we accept you explanation of why Israel was justified in doing this, do you mind giving your impression of Israel’s determination not to put its hand up and accept responsibility for that smoking crater?

      After all, if I read Article 51 correctly then – justified or not – once Israel launches an attack on another country then they becam obliged to report *to* the UN Security Council the why’s and wherefore’s of doing so.

      Attacking another country is a very serious business, and the very least a country can do is to treat such a business seriously.

      But the Israeli refusal to do anything more than smirk appears to have become their standard operating procedure dating back to at least 2007.

  6. 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 as strong belief in the necessity and value of international law, please see Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: 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 Gandhi and King did in their 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….

  7. This is why I made the point of the strategic context of Israel’s attack. It’s not a matter of Israel being “in the right” in this case – they aren’t – because they aren’t “in the right” either legally or geopolitically. It’s a matter of understanding WHY Israel chose to strike in this instance, despite the fact that missile shipments of this kind.through Syria to Hizballah in Lebanon have been occurring for years.

    Israel is attacking now because it wishes to increase the probability that the US and NATO will attack Syria, thus enabling Israel to attack Hizballah in Lebanon, and thus further enabling the probability of an Iran war by removing two strategic impediments for Israel in an Iran war.

    It is also striking now because it expects events in this year to move toward a war with Syria and Lebanon, and therefore it needs to use the cover of the Syrian crisis to attack such shipments in order to prevent Hizballah from further increasing its defensive capability prior to Israel’s expected attack on Lebanon this year. In other words, the Syrian crisis has already given it some cover because it knows it can strike now because Assad can’t afford to engage Israel while committed to defeating the insurgents.

    Which is why you won’t see any retaliation from either Syria or Hizballah and still less so from Iran, despite various threats. None of them wish to trigger a war with Israel – and perhaps the US.

    Dan’s interpretation is presumably different, but he can speak for himself as to why he thinks this Israeli strike is “in the right” even if not legal.

  8. Bibi Jon says:

    Dan, others,

    Would you like to analyze the following stated motive:

    Major-General Amir Eshel said at a conference that Israel is involved in a “war between wars” and that “this campaign is 24/7, 365 days a year. We are taking action to reduce the immediate threats, to create better conditions in which we will be able to win the wars, when they happen.”

    From http://worldnews.nbcnews.com/_news/2013/01/30/16775909-analysis-israeli-attack-in-syria-could-trigger-iran-reaction?lite

  9. yousaf says:

    It seems that it is still not clear what happened in the airstrike. Does anyone have reliable information?

    My view is that the suffering in Syria is horrible, but that intervention by the West is probably not the best course of action. (Witness the unintended consequences of Libya….) There’s also plenty of suffering in the Congo and elsewhere, but the media does not amplify it as much.

  10. johnboy says:

    Ahem.

    Dan’s rationalization for Israel’s air strike inside Syria does rather require him to take At Face Value the claim that Israel targetted a munitions convoy heading towards Lebanon.

    Dan, that’s a mighty big assumption to make.

    I’ll point out that the SYRIAN’s are saying that the air strike hit a military research facility near Damascus, while the Turkish Foreign Minister let slip that the Turks believe that the Israelis were targetting facilities near Assad’s Presidential Palace.

    Now, at this moment those conflicting accounts aren’t reconciled, so I suppose anything is possible.

    But consider this: IF the Syrian/Turkish account is true i.e. IF the IDF launched an air strike on a target near/in Damascus THEN that’s a totally different kettle of fish, and there is simply no justification for this strike.

    Q: Why would the IDF launch such a strike?
    A: Well, one reason would be to goad the Syrians into lighting up their air defense radars and comms.

    Q: Why do that?
    A: So that the Israelis/NATO/USA/whoever can gain valuable intel for the day that they really decide to go gangbusters on Assad.

    As I say, mere conjecture.

    But – as I have said above, and it is well worth repeating – so is the claim that the Israelis struck a munitions convoy heading towards Hezbollah.

  11. Based on Israeli and other statements today, apparently the attack was against multiple targets, and the reported “convoy” was in fact parked at a Syrian military facility.

    If they were parked, then how does Israel know that convoy was going to Lebanon – simply because they were headed in that general direction? Did they have more definitive intelligence? We’ll probably never know, of course.

    Sorry. I don’t buy it. This attack was done for other reasons – perhaps merely to provide “justification” for the claim of Hizballah weapons transfer, perhaps to test Syrian military response under the current Syrian civil war conditions. It’s possible of course that if Israel believes it will soon be attacking Hizballah under cover of the civil war that it used that cover of the civil war to reduce weapons that might be used by Hizballah OR Syria in such a war. Or all of the above…

    All we do know is that the history of Israel is full of lies about its actions and its intended actions.

    More serious is the fact that Obama gave a green light for the attack AND apparently gave a green light for further Israel attacks as Israel sees fit. This can only aggravate the situation and once again makes clear that whenever people say Obama is “resistant” to foreign military intervention, they’re just wrong. There’s no way that Obama green lighting further Israeli attacks is going to lead anywhere but a foreign military intervention.

    The only question is when and how that intervention will be “justified”, i.e., “spun”. My guess is said spin will be directly or indirectly related to Hizballah because only that will explain Israel’s eventual attack through Syrian territory on the Bekaa Valley. At any time Israel and/or Obama can claim that Syria is transferring “WMDs” to Hizballah. No proof would be needed or forthcoming.

    • Johnboy says:

      “No proof would be needed or forthcoming.”

      Exactly.

      Israel isn’t acting as if it reluctantly has to break int’l law for imperative reasons of self-defense, but as if it genuinely believes that those laws simply don’t apply to it.

      How else to explain its pattern of going BANG! on countries and then smirking its ludicrous “What, Me? Who said it was me?”

      Heck, even the USA – an infinitely more powerful nation than Israel will ever be – feels the need to *explain* its reasons when it does decide to go BANG! on someone.

  12. 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, “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 and Israeli adventurism in this affair was emblematic of and set the tone for IDF strategies of military engagement that were subject to little or no effective independent political control. As Maoz’s massive tome 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.” 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.” Readers of this blog in particular should note that “Israel armed its nuclear warheads on at least two occasions during the war: October 9 and October 23.

    Consider now 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 purportedly 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’].”

    In conclusion, 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 if we want to assess the plausibility of its ostensible or speculative rationalization or justification. 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.

  13. Errata (quote marks): Israel “carries a major portion of the blame for the deterioration and escalation of Israeli –Syrian relations”…

    “Israel armed its nuclear warheads on at least two occasions during the war: October 9 and October 23.”

  14. johnboy says:

    Just to point out that the story has started changing….
    http://www.nytimes.com/2013/02/04/world/middleeast/syrian-weapons-center-said-to-be-damaged.html?src=rechp&_r=0

    Apparently we are now led to believe that Israel attacked a weapons convoy – sure, sure, they did! Really, they did! – but that convoy juuuuuust happened to be passing a weapons research centre at the time the bombs started dropping and, you know, stuff happens….. collateral damage… you understand…..

    Or maybe not, since that same article suggested that Israel launched simultaneous raids on a number of targets, but since they only used a few F-16s then that’s A-OK…..

    Or perhaps not, who knows…..

    But the “They woz’ missiles dat’ were headin’ fer’ Hezbollah!” spin seems to be slipping, and with it goes the rationale behind this attack.

  15. Dan Joyner says:

    Hi everyone, sorry for my delayed response. I’ve been travelling for the past week and, for about the last 12 hours of it, vomiting in a Parisian hotel. But, laying that pretty image aside, this post has gotten alot more attention than I thought it would. Alot of you have questioned me about my comments here, and of course I welcome that, and I appreciate all of the very thoughtful commentary that has been expressed here. I’m certainly not so arrogant as to think I’m definitely right in my assessment – which again was not a legal but a political/practical assessment, and was made quickly and on the basis of only the first information coming out of the incident – that Israel’s actions here were definintely the right thing to do, notwithstanding their illegality. That being said, I would encourage each of 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. After all, isnt that what we often preach to others in different contexts?

    When I heard the news of this incident, I just thought quickly that, if it was in fact true that the Israeli military had good intelligence that serious weaponry was being smuggled out of Syria, destined for Hezbollah, inevitably to be used against Israel, and as I said particularly in light of the anarchy currently holding sway in Syria – i.e. that there wasn’t even the normal facade of a domestic law enforcement system that should presumably handle such a situation – then if I was the Israeli PM I would think that this was a moment in which the technicalities of international law would not stop me from making a simple air raid across the border, causing few if any casualties, and targeting the missile shipment before it got out of pocket and lost to my ability to stop it falling into enemy hands and being used to kill my people.

    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 wouldnt do the same thing? Especially when in this particular instance, the loss of life caused by the action appears to have been minimal.

    Isnt it at least somewhat analagous 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 wouldnt do whatever was necessary in that situation, particularly if no one or few would be hurt by it? I’d break alot 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. This was the subject of my article in the George Washington International Law Review, which you can see at this link: http://docs.law.gwu.edu/stdg/gwilr/PDFs/40-1/40-1-Joyner.pdf
    So this is something that I’ve given alot of thought to, and tried to work out from a theoretical as well as doctrinal perspective. That certainly doesnt 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 its right to disobey international law, when does it stop? Isnt 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 ints 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 dont believe in fudging the interpretation of the law. And to be clear, its 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.

    For those who have pointed out that emerging facts may seem to paint the situation differently from how it first appeared, I certainly agree 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.

    • JV says:

      The news reports are that these were not chemical weapons but surface to air missiles. These are not offensive weapons they are defensive weapons. What Israel was afraid of is that Lebanon would be able to prevent constant violations of it’s air space by Israel which are also a violation of treaties. Nothing about this speaks of any kind of threat to Israel unless Israel chooses to attack Lebanon and then it would only be a threat to attacking air craft not the population of Israel.

  16. Dan, I hope you’re feeling well. I posted a response to your original post that adds a bit more material although I did not address your latest piece above, nor the article you linked to (perhaps in the future). Thanks to you first and foremost and secondly to the other commenters for this discussion. Please see: http://www.religiousleftlaw.com/2013/02/the-israeli-strikes-in-syria-and-international-law.html

    Best wishes,
    Patrick

  17. Bibi Jon says:

    “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 wouldnt do the same thing? Especially when in this particular instance, the loss of life caused by the action appears to have been minimal.”

    So I guess ‘preventive’ aggression has become the new normal. Syria was remiss for not having bombed IAF preventively according to this.

    I wonder if this new normal is only for the mid east. Shouldn’t China and Japan start taking some preventive actions right about now?

  18. Denis says:

    Boy, did you step in it!! Now you know what a pinata feels like. Let me take a couple swings . . .

    @Dan “Again, I think that this should be very much the exception, and should only take place in exceptional circumstances.”

    To which I would respond: huh? Exceptional circumstances?

    6-Days Massacre, including napalm attacks on fleeing Egyptians, 1967
    USS Liberty massacre, 1967
    Osirak,1981;
    Deir ez-Zor reactor, 2007;
    Gaza, 2008
    Mavi Marmara, 2010,
    Gaza, 2012
    Continuing invasions of Lebanese airspace
    ….

    OK, you see where I’m going with this. There gets a point at which this necessity-makes-right approach (i.e. “existential threat”) begins to get a little tired.

    The reality is that Israel just doesn’t see the law as applying to Israel, and they are 100% right, it doesn’t. The international community lets them get away with every violation of law every time using the same analysis as you have articulated.

    So sure, in such a case, any country is going to break the law all it wants and plead “we had to do it.” It is this de facto, impenetrable, recurring immunity that troubles many of us.

    You opine: “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.”

    Well, that depends on how you define “right” and it depends on whether you are including the interests of the target country and the families of corpses left behind in the calculation. It appears that you intend “right” to mean “pragmatic,” in which case I would agree because for everyone other than the mentally ill not following the law is justified as being necessary for one reason or another.

    Blowing the neighbor’s dog away to keep it from craping on my yard may be pragmatic, and it may be necessary to save my lawn, but I’m not sure that makes it “right” in any absolute sense. I mean, neither the neighbor nor the dog are going to be on board with that justification.

    There is an alternative approach to this analysis that was articulated by a 1960’s TV character named “Maverick.” Maybe this is what you are getting at. Maverick said: “Sometimes a man’s gotta’ rise above principle.”

    If you substitute “law” for “principle” this might fit the bill, but it is, of course, a formula for anarchy because what’s good for the goose is good for the gander. If Israel can preemptively attack Syria to eliminate some perceived threat, then why can’t Iran attack Israel for the very same reason?

    Yogurt. 1 cup a day, you’ll come right.

  19. Both Bibi Jon and especially Denis, exemplify and reiterate points in my post about the geo-political and historical context and legal pattern as essential to assessing this particular case. As noted, the invocation of “exception” ignores the fact that our background knowledge finds a general rule or pattern to the contrary. There are, I think, compelling reasons why the Charter rule has the status of a jus cogens norm (by way of addressing the concern expressed in the penultimate post above)…. The Maoz title (and this from an expert in the field with impeccable credentials for those anxious about such things: a political science professor who is ‘the former head of the Graduate School of Government and Policy and the Jaffee Center for Strategic Studies at Tel Aviv University, as well as the former academic director of the M.A. Program at the Israeli Defense Forces’ National Defense College) does a marvelous job of documenting Israel’s unwarranted penchant for this sort of behavior (which of course frequently has the explicit or implicit backing of the U.S.). This incident cannot be analyzed in isolation nor as yet another instance of justified “self-defense” from an imminent or purported threat….

  20. Let’s examine this part in detail…

    “if it was in fact true that the Israeli military had good intelligence that serious weaponry was being smuggled out of Syria, destined for Hezbollah”

    For which evidence is lacking. More importantly, as I pointed out, this has been going on for years and presumably Israel has had plenty of intelligence on previous shipments. Yet they chose to attack NOW under cover of the Syrian insurgency.

    ” inevitably to be used against Israel”

    Why “inevitably?” Are you assuming that Hizballah intends to launch an attack on Israel ABSENT Israel attacking Lebanon? Are you assuming that Israel would NOT launch such an attack a la 2006 without “good cause”?

    “and as I said particularly in light of the anarchy currently holding sway in Syria – i.e. that there wasn’t even the normal facade of a domestic law enforcement system that should presumably handle such a situation”

    I think we can assume that the Assad government knows perfectly well that Iranian missiles are being transshipped through Syria to Hizballah and that it has adopted a hands off approach to that situation.

    “then if I was the Israeli PM I would think that this was a moment in which the technicalities of international law would not stop me from making a simple air raid across the border”

    Yes, if you’re a politician accustomed to launching illegal attacks on neighboring countries, violating airspace in Lebanon and Syria regularly, conducting covert operations involving explosive assassinations of “terrorists” around the world, etc., etc., then clearly this was a “no-brainer”!

    “causing few if any casualties”

    Since when has Israel cared about “collateral damage”? I submit: never. As both Lebanon in 2006 and Cast Lead established beyond all doubt.

    “and targeting the missile shipment before it got out of pocket and lost to my ability to stop it falling into enemy hands and being used to kill my people.”

    Which they only would be if Israel launched yet another illegal, unprovoked, massively destructive war on Lebanon.

    Hizballah wouldn’t even exist if it weren’t for Israeli previous illegal aggressions under international law.

    I’m sorry, Dan, but context is everything in this case. You can’t just say, “Well, under the circumstances it was the right thing to do” – even if you limit the circumstances to the known Israeli predilection for using military force illegally.

    The REAL problem, however, goes beyond that. The REAL problem is that the context involves the Syrian crisis and the reasons Israel wants to get involved in that crisis. People last year tended to assume that Israel wanted to stay out of it or was concerned that Syria might collapse and make more problems for Israel.

    The reality, as I’ve said for the past year, is that Israel and the US WANT Syria (and as a consequence Hizballah in Lebanon) to be “degraded” – with special reference to the missile arsenals of both parties – because that is the only way Israel can afford to have a war with Iran.

    The Likud Party can not afford to start an Iran war which involves Iranian missiles, Syrian missiles AND Hizballah missiles daily striking Israel, forcing much of the electorate into bomb shelters, thereby ticking them off, and damaging the economy. In the next elections, the electorate might well blame the party for its woes, forcing them out of office.

    The ONLY way Israel can deal with that situation is to take out Hizballah’s and Syria’s missiles. The ONLY way to do THAT is to attack Hizballah through the Bekaa Valley. The only way to do THAT is to go through Syrian territory, thus engaging Syrian troops. The only way to do THAT – without having to deal with a two-front war – is if the US and NATO are bombing Syria a la Libya.

    And that requires foreign military intervention. Several efforts have been made to make this happen:

    1) The US submitted UNSC Resolutions with Chapter 7 language. These were vetoed by Russia and China who could easily see the writing on the wall.

    2) Attempts were made to get Syria to respond to attacks from Turkey and Israel by having the insurgents fire mortars into Syrian and Israeli territory provoking Turkish and Israel retaliation, hoping to get Syria to retaliate. That failed.

    3) The specter of “chemical weapons being used on Syrian civilians” was raised, but failed.

    4) The specter of “chemical weapons being given to Hizballah, aka ‘terrorists’ (which Hizballah is not) was raised. This has failed – so far, at least.

    5) Now the specter of “advanced missiles being sent to Hizballah” – the actual, real reason for the Syrian crisis – has finally been admitted.

    That is the ENTIRE point of the Syrian crisis – to re-align the strategic relationship of Israel to Syria and Lebanon in order to permit an Iran war to occur with limited cost to Israel.

    And that is the context which is critical to understanding Israel’s air strike on Syria.

    And because of that context, no, the Syrian air strike cannot be justified – unless you assume Israel is justified in trying to get an Iran war started.

  21. “Can any one of you honestly say that if it was your country being threatened in this way, you wouldnt do the same thing”

    But Dan, as you know International law has a mechanism to deal with for such scenarios: this is why we have the concept of pre-emptive or anticipatory use of force in self-defense. However that requires imminence, necessity, proportionality, etc as spelled out in the Caroline case

    So perhaps you can reframe the issue as a legal pre-emptive use of force, rather than a “justifiable” violation of international law.

  22. JP Zanders says:

    If the strike did not light up radar screens, the discussion of its implications certainly lit up this forum.

    I would just like to to point participants to a posting on the INSS (Tel Aviv) website that gives an Israeli view on the rationale and dilemmas behind the type of strikes across Israel’s border. Whether such operations are legal or not is not addressed, but the piece does add some texture to Dan’s original posting (thoughts that I would not necessarily endorse or even venture to write while sitting in a Parisian bistro):

    Confronting Enemy Force Buildup: The Case of Advanced Weaponry for Hizbollah INSS Insight No. 401, February 7, 2013
    Yadlin, Amos
    http://www.inss.org.il/publications.php?cat=21&incat=&read=10942


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