Israel well within rights to defend against ‘spillover’ Syrian violence

Every state has a basic right under international law to self-defense. Israel is no exception. So, when the Israel Defense Forces (IDF) is forced to fire upon offending Syrian military positions, this needed retaliatory action is both lawful and law-enforcing. 

Most recently, the pertinent offense by Bashar al-Assad has been to repeatedly allow dangerous “spillover” from the Syrian civil war to the Israeli side of the Golan Heights. Israel is most concerned about the terrorist militia Hezbollah, operating under the patronage of both Damascus and Tehran. Hezbollah has been strengthening near Quneitra, very close to the Israeli border.

{mosads}What’s more, Israel’s carefully-measured use of force against Hezbollah terrorists and related assets in Syria has been appropriately consistent with all relevant rules of war. Although Tehran continues to identify Israel’s self-defense actions as “aggression,” these required actions are plainly supported in Article 51 of the United Nations Charter.

International law is not a suicide pact. By allowing its territory to be used as a source of Hezbollah terrorist weapons against Israel and as a formidable new base for anti-Israeli terrorist operations, Syria has placed itself in very clear violation of the U.N. charter, and with respect to wider international law.

Because Syria, solely at its own insistence, continues in a formal condition of belligerency with Israel, any charge of “Israeli aggression” by Damascus or Tehran simply makes no legal sense.

Syria, of course, has become a failed state. Nonetheless, as Prime Minister Netanyahu correctly points out, Bashar al-Assad remains personally and legally responsible for any “spillover violence.” In law, having been transformed into a failed state in no way constitutes a permissible excuse. Such a metamorphosis, however unintended, is never exculpatory.

For Israel, the expressly legal issues are easy to ascertain and affirm. To begin, authoritative prohibitions of pro-terrorist behavior by a state can be found at Article 3(f) and 3(g) of the 1974 General Assembly Definition of Aggression. These prohibitions also form a part of longstanding customary international law and of what are identified at Article 38 of the Statute of the International Court of Justice as “the general principles of law recognized by civilized nations.”

Following the 1977 Protocols to the Geneva Conventions of 1949, insurgent organizations, like states, are fully obliged to comply with humanitarian international law.

Under all binding international law, every use of force by states must be judged twice: once with regard to the justness of the cause and once with regard to the justness of the means. This second standard expressly concerns the law of armed conflict. Even when it can be determined that a state has a basic right to use force against another, or against another state’s proxies, this does not imply, ipso facto, that such use would automatically be in agreement with the law of war.

From the start, in defending itself against Hezbollah, Israel’s actions have been consistent with the law of war. Unlike the Shiite terrorist militias in Lebanon, now repositioning, in part, to southern Syria, and unlike the Syrian-supported Hamas and Islamic Jihad Sunni forces, who very enthusiastically target noncombatants, Israel has always been meticulous about striking at exclusively hard targets in both Syria and Lebanon.

Unlike Damascus, which even in its currently attenuated form opposes any peaceful settlement with Israel, Jerusalem resorts to defensive force only as a distinctly last resort. As for the perplexing Syrian allegations that Israel’s actions have somehow raised the risk of further escalation, this particular risk could disappear entirely if Damascus and Tehran would cease their lawless support for Hezbollah and other related criminal organizations. Terrorism, it must never be forgotten, is far more than wanton violence.

Also, it represents an expressly codified crime under international law.

Ultimately, the lawfulness of Israel’s use of force against Hezbollah terrorists and against Hezbollah-bound weapons in Syria, is supported by the “inherent right” of “anticipatory self-defense.” Augmenting the specifically post-attack right of self-defense found at Article 51 of the U.N. charter, this customary international law doctrine entitles any existentially-endangered state to use appropriately measured force preemptively, whenever the danger posed is “imminent in point of time.” 

Now facing a potentially endless stream of terrorist rocket attacks upon its vulnerable civilian populations, Israel maintains not only the right, but also the obligation, to protect its citizens.

Which enemies of Israel are likely most formidable? Is there a presumed hierarchy of regional enmity that should now properly correlate with IDF operations against Hezbollah and (potentially) ISIS? Such serious questions should not be avoided in Jerusalem and Tel Aviv, or, for that matter, by an allegedly concerned White House in Washington.

Louis Rene Beres is professor emeritus of political science at Purdue University. Beres’ lectures and research focus on international relations, terrorism and international law. He is the author of several books, including, “Surviving Amid Chaos: Israel’s Nuclear Strategy,” which was published in 2016  by Rowman & Littlefield.

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