Nicolas J S Davies

A collection of published articles and letters to policymakers regarding the crisis in United States foreign policy by Nicolas J S Davies.

Location: North Miami, Florida, United States

Friday, August 04, 2006

Israel in Lebanon and the War on Terror - the limits of self-defense

Published by Online Journal on July 27th 2006 at :

U.S. officials are defending the Israeli government’s military actions in Lebanon as an exercise of its right of self-defense, and the United States has vetoed a U.N. Security Council resolution that called for an immediate ceasefire. This is consistent with the position adopted by the U.S. since September 11, 2001: that the principle of self-defense gives countries a virtually unlimited right to attack or otherwise violate the sovereignty of other nations from which terrorist or guerilla groups plan and launch attacks. This position has formed an essential pillar of the U.S. government’s “War on Terror.” What’s wrong with this argument?

Under current international law, there are only two internationally recognized justifications for the use of military force. One is at the request of the U.N. Security Council, and the other is in self-defense.

Article 51 of the U.N. Charter states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures to maintain international peace and security.” Self-defense is thus recognized as an “inherent right,” but only until the Security Council has acted to restore peace and security.

The recurring and obvious difficulty with the justification of self-defense is to define what constitutes a legitimate act of self-defense as opposed to an opportunistic and excessive response to a provocation. The distinction is invariably in the eye of the beholder.

However, international law has relied for more than 160 years on principles established following a British attack on the Caroline, an American passenger ship, on the Niagara River in 1836. The British viewed the attack as an act of self-defense, since the Caroline was being used to smuggle weapons to anti-British rebels in Canada. Americans saw it as an act of war against the United States.

The dispute was resolved when British Foreign Secretary Lord Ashburton agreed with U.S. Secretary of State Daniel Webster that “Respect for the inviolable character of the territory of independent nations is the most essential foundation of civilization,” and that this can only be legally overridden by “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” and “the act . . . must be limited by that necessity, and kept clearly within it.”

This principle has stood the test of time and changing circumstances, and was cited word for word by the judges at Nuremberg in rejecting the claims of the Geman defendants that some of their attacks on other countries were acts of self-defense.

It is interesting that this principle of international law was developed in response to a case involving asymmetrical warfare by “insurgents” or “unlawful combatants” using a merchant vessel and its passengers and crew as “human shields”. This contradicts the American argument that such tactics are unprecedented and require responses otherwise forbidden by international law, since it was precisely those tactics that led to the formulation of the existing law.

So, how do these principles apply to the Israeli campaign against Lebanon? Is Israel faced with “a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation”? And are its recent and present actions “limited by that necessity, and kept clearly within it”?

Israel has argued that a military response to the missile attacks and the capture of its soldiers was a legitimate exercise of its right to defend itself. The Israeli government may have believed in good faith that the government of Lebanon was incapable of rescuing and returning its soldiers or stopping the Hezbollah missile attacks. However, the bombing of Tyre, Beirut, many villages and much of the country’s infrastructure clearly do not meet what Robin Cook called “the twin tests of necessity and proportionality” established by the Caroline case.

The inability of the U.N. Security Council to take measures “to maintain international peace and security,” as called for in Article 51, betrays a long-recognized weakness in the U.N. system. Albert Camus wrote in 1946 that the Security Council veto “would effectively put an end to any idea of international democracy . . . The Five would retain forever the freedom of maneuver that would be forever denied the others.” In this case, the United States has used its veto to override a ten-to-one majority in the Security Council so as to prevent U.N. intervention to bring about and enforce a ceasefire.

Any necessity for continued Israeli military action under Article 51 is therefore the direct result of the U.S. veto, which has prevented the U.N. from assuming its responsibility to restore peace and security.

U.N. Secretary General Kofi Annan has told the Security Council that “Israel’s disproportionate use of force and collective punishment of the Lebanese people must stop,” implicitly rejecting the notion that Israel has “no choice of means” in its actions. Neither the escalation of the Israeli campaign under the cover of the U.S. veto, nor the killing and terrorizing of Lebanese civilians are therefore justified by the argument of self-defense, either in the eyes of the Secretary General, or under current international law.

The United States has used a similarly expanded definition of self-defense to justify its nearly five-year-old war against the Taliban in Afghanistan, the war in Iraq and interventions by U.S. “special forces” and intelligence agents in Somalia, Iran, Syria, Pakistan, Italy and other countries.

Despite the secrecy surrounding many of these operations, U.S. assertions of the right to conduct such operations are no secret. The Defense Strategy of the U.S.A. (2005) threatens unilateral military action against “gathering threats,” “emerging challenges,” “to deny an opponent the strategic initiative” and to “defeat adversaries at the time, place, and in the manner of our choosing – setting the conditions for future security,” -- none of which constitutes a legitimate exercise of the right of self-defense under international law.

The consequences for the world of the abandonment of international legitimacy by such a powerful country are only gradually becoming apparent, but, in historical terms, peace and stability are unravelling very fast. Afghanistan, Palestine, Israel, Lebanon, Iraq, Colombia and Haiti have already been engulfed by intractable violence. U.S. policy is undermining hopes for peace in Somalia and Nepal, and destabilizing Pakistan, Iran, Saudi Arabia and other Muslim states; and the threat of U.S. intervention still hangs over most of Latin America.

Nuclear proliferation has received its biggest boost since 1945 as the preferred means for weaker countries to deter American aggression. Britain and France came to rely on nuclear weapons in the 1950s and 1960s in response to their weakened strategic positions relative to the U.S. and U.S.S.R. The prospect of American military “strength” unfettered by international law is having the same effect on many countries today.

The illusion of military “strength” as a substitute for international law is becoming only too clear. In 1811, the Duke of Wellington reported that, although France had 350,000 troops in Spain and Portugal, they had “no authority beyond the spot where they stand.” How many U.S. officers in Iraq today would sympathize with their Napoleonic counterparts? And will the Israeli columns massed on the Lebanese border roll to victory . . . or impotence?
The current framework of international law has been conscientiously developed with the collective wisdom of diplomats of many countries over several generations, based on their experience of the most destructive wars in human history. Today’s leaders ignore the rules they crafted at their peril -- and ours. Self-defence is a right that must be exercised legitimately if it is to be preserved at all.