The 2006 Israeli invasion of Lebanon: aggression, self-defense, or a reprisal gone bad?
|Wrachford, Jason S.
INTRODUCTION II. EARLY JEWISH/ARAB HISTORY III. FORMATION OF THE ISRAELI STATE IV. SAMPLING OF POST-CREATION CONFLICTS A. Initial Conflict B. Sinai Campaign C. Six-Day War D. 1968 Israeli Attack on Beirut Airport E. The October 1973 War F. Israeli Raid on Entebbe G. Attack on Osirak V. INVASION OF LEBANON A. Earlier Invasions of Lebanon B. Conflict with Hezbollah C. United Nations Actions in Lebanon from 1978 to 2006 D. Invasion VI. EVOLUTION OF SELF-DEFENSE ARGUMENTS A. Customary International Law Before the UN Charter 1. Grotius and Self-Defense 2. The Caroline Incident a. Background b. Legal Arguments Formed from the Caroline Incident c. Recognition of the Caroline Doctrine B. UN Charter 1. Article 2(4) 2. Article 51 a. Armed Attack b. Absence of Armed Attack c. Security Council Action C. Recent Commentary on Self-Defense Elements 1. Immediacy 2. Necessity 3. Proportionality VII. REPRISALS VIII. ANALYSIS OF 2006 ISRAELI INVASION A. Violation of Article 2(4)? 1. Threshold Determination 2. Article 51 Exception a. Hezbollah b. Lebanon c. Security Council Action B. Compliance with Self-Defense Elements 1. Immediacy 2. Necessity 3. Proportionality IX. CONCLUSION What was self-defense in the eyes and especially in the words of one party was considered aggression or provocation in the eyes and words of another. One side's self-defense was the other side's aggression. (1)
On 12 July 2006, Hezbollah (2) guerillas from Lebanon crossed into Israel, kidnapped two Israeli soldiers, and killed several others. (3) Israel responded by attacking targets throughout Lebanon, followed by a massive ground invasion into Lebanon that lasted until a cease-fire agreement was reached on 14 August 2006. (4)
This article will analyze whether Israel's response, in particular its invasion, was legitimate under the current status of international law. This article will first provide an overview of the Arab-Israeli conflict in general, followed by a summary of several Israeli military actions since 1948 and the international reaction to these incidents. This review is crucial to understanding the background and context of Israel's summer 2006 invasion of Lebanon. Without it, the invasion may seem like an extreme overreaction to what some might perceive as a relatively minor incident. But, as should become readily apparent, it is not quite so simple when placed against the backdrop of the past fifty-nine years since the formation of the State of Israel. Following this review, this article will analyze the evolution and development of self-defense in international law. Historical examples that formed customary international law, the United Nations Charter, case law, treatises and other learned scholarly work, and recent practices will provide the sources for this examination. This article will discuss the requirements for a legitimate use of self-defense and consider whether a reprisal is still legal under international law. This article will then analyze Israel's 2006 invasion of Lebanon against the international law previously identified.
In various places, this article raises numerous questions concerning the legitimacy of the invasion. For example, is self-defense to terrorist acts sufficient justification for a full-scale invasion of the country where the terrorists are based? Is a full-scale invasion proportional in response to ongoing border wars and skirmishes? Is the kidnapping of two Israeli soldiers enough justification for invasion, especially considering both sides to the conflict have used kidnappings as a tactic? Has Israel essentially waived its right to self-defense by repeatedly taking aggressive acts? Was Israel justified under international law in violating the territorial sovereignty of Lebanon when Lebanon was unable or unwilling to fulfill its legal obligations to control the militia groups within its borders? Did the United Nations' inability to fulfill its obligations under the U.N. Charter and applicable Security Council Resolutions afford Israel the legal right under both the U.N. Charter and customary international law to take matters into its own hands? Resolution of these questions is necessary in analyzing whether Israel's use of force, particularly its invasion of Lebanon, was justified under international law.
In sum, this article draws the conclusion that Israel did have the right to use armed force in self-defense in response to Hezbollah, but that its response was disproportional. Furthermore, this article concludes that Israel's targeting of Lebanon itself was not in compliance with the current state of international law.
EARLY JEWISH/ARAB HISTORY
Many historians and religious scholars believe the conflict between Arabs and Jews dates back thousands of years ago to the time of Abraham and his two sons, Ishmael and Isaac, who are the forefathers of the Arab and Jewish people, respectively. (5) God promised the land encompassing Palestine (which includes modem-day Israel) to the sons of Abraham, (6) thus giving the descendents of both sons an ancient claim to the land of Palestine. (7)
The Jews began to settle in the land of Israel around 1300 B.C.E., and controlled the area for several hundred years until other nations conquered their lands. (8) There were short periods where Jews controlled portions of modern-day Israel, but in 135 C.E., the Jews were completely dispersed from their ancient homeland. (9) Arabs gradually came to control the area of Palestine, and by the end of the seventh century, most of the population spoke Arabic and were primarily Muslim. (10) Over the next 1,200 years, Arabs, Jews, and Christians fought many wars over the land of Palestine, including the Crusades, but Arabs constituted the vast majority of the population in Palestine throughout this period. (11)
FORMATION OF THE ISRAELI STATE
During the 19th century, the land of Palestine was part of the Ottoman Empire and was separated into various political provinces and districts. (12) During this time, as nation-states were continuing to develop and emerge, Jews and Palestinians both embraced this emerging trend toward nationalism. (13) The Palestinians, who were mostly Muslim and of Arab decent, believed they should form their own nation in Palestine. (14) Jews, who were spread throughout the world, believed Palestine was the obvious location for their planned formation, or rather reformation, of the nation of Israel. (15) This Jewish movement, to be called Zionism, began in earnest in 1882, when European Jews first began immigrating to Palestine. (16)
By the end of World War I, the Ottoman Empire had completely collapsed and British forces were in control of Jerusalem. (17) Following the war, the newly formed League of Nations granted a mandate to Great Britain over the area of Palestine, which includes modern-day Israel and Jordan. (18) Palestine was subsequently divided into two regions, (19) with Arabs controlling a large portion of land east of the Jordan River, known as Transjordan. (20) While Arabs now had a nation they could largely call their own, both Arabs and Jews alike wanted control over the land on the western side of the Jordan River, mainly due to its historical and religious significance. (21) This land became known as Palestine. (22) Both British and international politics prevented the formal creation of either an Arab or Israeli state in Palestine, and several armed skirmishes arose in the years that followed. (23)
Following World War 11 and the Holocaust, the hostilities between Arabs and Jews over Palestine reached the level of an international crisis, (24) as the British were unable to stabilize the conflict or broker an agreement between the groups. (25) In early 1947, the British requested the assistance of the recently established United Nations, and the U.N. subsequently created the Special Commission on Palestine (UNSCOP) to find a viable solution. (26) On 29 November 1947, the U.N. General Assembly voted to partition Palestine into separate Arab and Jewish states, with Jerusalem holding a special international status. (27) On 14 May 1948, the British Mandate over Palestine expired at midnight, and Israel officially declared itself a sovereign nation. (28)
SAMPLING OF POST-CREATION CONFLICTS
As noted in the introduction, Israel has been involved in many conflicts since its formation in 1948. (29) A review of just a portion of these conflicts, and the international reaction to them, is necessary to put Israel's recent actions into context and to provide a framework from which Israel's actions should be judged.
Following the November 1947 partitioning of Palestine by the U.N. General Assembly, violence escalated between Jews and Arabs. (30) In January 1948, Arabs attacked several Jewish cities in northern Palestine, and the British, who were technically still in control of the area at the time, were unable to quell the violence. (31) On 15 May 1948, following the British withdrawal and the Israeli declaration of sovereignty, more than 25,000 Arab military troops from across the Middle East, in addition to more than 35,000 Arab irregulars, attacked the Israeli portion of Palestine. (32) By January 1949, Israeli armed forces had soundly defeated the Arab forces and had conquered territory well beyond the U.N. partition plan. (33) Throughout this conflict, the U.N. Security Council adopted numerous resolutions calling upon the parties to cease hostilities, and it ultimately established an armistice agreement. (34)
In 1955, Egypt permitted, if not sponsored, raids by armed bands of fedayeen (Arab guerrillas or commandos) from various regions into Israel, and Israel reacted by attacking several Arab communities in Gaza (controlled by Egypt) and the West Bank (controlled by Jordan). (35) Following international outcry over these attacks against purely civilian targets, Israel began directing its attacks against solely military Arab...
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