“Change Direction” 2006: Israeli Operations in Lebanon and the International Law of Self-Defense

Michael N. Schmitt*

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On July 12, 2006, Hezbollah launched Operation True Promise, the
ambush of Israel Defense Force (IDF) soldiers patrolling the border with
Lebanon.1 Three Israelis were killed and two captured. Four more died in
an IDF tank responding to the attack, while an eighth perished as Israeli
forces attempted to recover the bodies of the tank crew. Meanwhile,
Hezbollah rocket attacks against northern Israeli towns and IDF facilities
killed two civilians.
Israel reacted quickly and forcefully with Operation Change Direction.
The military action included a naval and air blockade of Lebanon,
air strikes throughout the country, and, eventually, a major ground incursion
into southern Lebanon. As the IDF acted, Israel’s Ambassador to the
United Nations transmitted identical letters to the Secretary-General and
the Security Council setting forth the legal basis for the operation.
Israel thus reserves the right to act in accordance with Article 51
of the Charter of the United Nations and exercise its right of selfdefense
when an armed attack is launched against a Member of
the United Nations. The State of Israel will take appropriate actions
to secure the release of the kidnapped soldiers and bring an
end to the shelling that terrorizes our citizens.2

This Article explores and assesses the Israeli justification for Operation
Change Direction. Did the law of self-defense provide a basis for
the operation? If so, defense against whom—Hezbollah, the State of
Lebanon, or both? Were the Israeli actions consistent with the criteria for
a lawful defensive action: necessity, proportionality, and immediacy?
Did Operation Change Direction unlawfully breach Lebanese territorial
integrity?
In order to frame the discussion, it is necessary to distinguish two
distinct components of the international law governing the use of force.
The jus ad bellum sets normative boundaries as to when a State may resort
to force as an instrument of its national policy.3 Its prescriptive
architecture is modest, at least in terms of lex scripta.
Article 2(4) of the U.N. Charter prohibits the threat or use of force in
international relations.4 Only two exceptions to the proscription enjoy
universal acceptance. The first is enforcement action sanctioned by the
Security Council pursuant to Chapter VII of the Charter. By this linear
scheme, the Security Council may declare that a particular action or
situation represents a “threat to the peace, breach of the peace, or act of
aggression.”5 Once the declarative condition precedent has been met, it
may implement non-forceful remedial measures.6 Should such measures
prove “inadequate,” or if the Security Council believes they would not
suffice, “it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security.”7 The
Security Council does so by authorizing and employing U.N. commanded
and controlled forces or by giving a mandate for enforcement
action to either a regional organization or individual Member States organized
as an “ad hoc” coalition (or a combination of the two).
Although the Security Council did employ its Chapter VII authority
to enhance the size and mandate of the United Nations Interim Force in
Lebanon (UNIFIL) as part of the August 2006 ceasefire,8 it did not man-
date Operation Change Direction, either in July 2006 or at any previous
time. Instead, the legal basis for Operation Change Direction submitted
by Israel lay in the second express exception to the Article 2(4) prohibition—
self-defense.
Article 51 codifies the right of States to use force defensively: “Nothing
in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary
to maintain international peace and security.”9 A State acting in selfdefense
must immediately so notify the Security Council, a requirement
epitomized during Operation Change Direction by Israeli notification on
the very day defensive military operations began.10
The jus in bello, by contrast, governs how force may be employed
on the battlefield. It addresses such matters as the persons and objects
that may lawfully be targeted, how targeting has to be accomplished, and
the protections to which civilians, civilian objects, and those who are
hors de combat are entitled.11 All sides to an armed conflict must comply
with the jus in bello; status as an aggressor or a victim in the jus ad bellum
context has no bearing on the requirement.12 This Article does not
address the jus in bello.13

A basic grasp of the complex historical predicates to the 2006 conflict
in Lebanon is essential to understanding Operation Change
Direction and its normative context. Southern Lebanon is a predominately
Shiite area that has been largely ignored by the Lebanese
government.14 The absence of a strong governmental presence rendered
the area susceptible to exploitation by anti-Israeli groups.
Until its expulsion from Lebanon in 1982, the Palestinian Liberation
Organization (PLO) used southern Lebanon as a base of operations
against Israel.15 In 1978, a PLO attack on two Israeli buses left thirtyseven
dead and scores wounded. The IDF reacted with Operation Litani,
an operation designed to force the PLO and other Palestinian armed
groups from Lebanese territory south of the Litani River.16 In response,
the Security Council, in Resolutions 425 and 426, called on Israel to
withdraw from Lebanon. It also created the United Nations Interim
Force in Lebanon (UNIFIL) to monitor the withdrawal, help restore international
peace and security, and assist Lebanon in establishing
effective authority in the area.17
UNIFIL and the Lebanese government proved impotent in deterring
further Palestinian attacks.18 In 1982, the Abu Nidal Organization’s attempted
assassination of the Israeli Ambassador to the United Kingdom
precipitated Operation Peace for Galilee.19 During the controversial invasion
of Lebanon, the IDF ousted Syrian forces from Beirut and expelled
the PLO, including its leader Yasser Arafat.20 Israel established a buffer
zone in the southern part of the country, where the IDF remained for the
next 18 years.
The 1982 invasion radicalized many of southern Lebanon’s Shiites.
Inspired in part by the 1979 Iranian Revolution, they created Hezbollah
(Party of God). Trained, armed, financed, and logistically supported by
Syria and Iran, Hezbollah’s manifesto includes the liberation of Jerusalem,
the destruction of Israel, and the establishment of an Islamic State
in Lebanon.21
Since its formation, Hezbollah has repeatedly engaged in international
terrorism. The catalogue of such acts is long and bloody. They
include the seizure of eighteen U.S. hostages in the 1980s and 90s, the
1983 bombings of the U.S. Embassy and Marine Barracks in Beirut, a
1984 attack in Spain that killed eighteen U.S. service members, the 1985
hijacking of TWA flight 847 (during which a U.S. Navy sailor was murdered),
the 1992 bombing of the Israeli Embassy in Buenos Aires, and
regular attacks against targets in Israel with bombs, rockets, and surfaceto-
air missiles.22 Israel twice launched major military operations—
Operations Accountability (1993) and Grapes of Wrath (1996)—in response.
23
In May 2000, Israel ended its occupation of southern Lebanon, a
move the Security Council recognized as compliant with Resolution
425.24 Syria and Lebanon protested, maintaining that the ongoing Israeli
presence at Shab’a Farms, seized in 1967, violated the resolution and
amounted to continued occupation of Lebanese territory.25 In any event,
Hezbollah quickly filled the security vacuum created in the wake of the
withdrawal and continued to mount attacks against Israeli targets.26 A
declaration by Hezbollah’s leader, Sheik Hassan Nasrallah, that “if they
all gather in Israel, it will save us the trouble of going after them worldwide”
confirmed the organization’s aims.27
During this period, Israel repeatedly called on Lebanon to establish
control over the south. Likewise, the Security Council regularly stressed
the importance of Lebanese action.28 The demands fell on deaf ears, in
part due to the presence of Syrian forces in the country.29 Lebanese
President Emile Lahoud, a Maronite Christian who assumed power in
1998, had seemingly decided to tolerate Hezbollah’s presence and activities.
In 2004, the National Assembly, acting under Syrian pressure,
amended the Constitution to allow extension of Lahoud’s term in office
for an additional three years.30 The Security Council reacted in September
with Resolution 1559.31 Jointly sponsored by the United States and
France, the resolution called for a Syrian withdrawal and the disarming
of Hezbollah, a requirement previously set forth in the 1989 Ta’if
Agreement ending the Lebanese civil war.32
The assassination of Rafiq al-Hariri in February 2005 caused the
situation to deteriorate dramatically. Al-Hariri, a Sunni, had served as
Lebanon’s Prime Minister twice, having only resigned the previous October.
His assassination, in which many suspected Syrian involvement,
sparked massive demonstrations. The ensuing political crisis, labeled the
“Cedar Revolution,” led to the withdrawal of Syrian military forces from
Lebanon. At the same time, the United Nations called on the Lebanese
government “to double its efforts in order to ensure an immediate halt to
serious violations” of the “Blue Line,” the “border” between Lebanon
and Israel.33
In May, an anti-Syrian coalition won elections, but fell short of the
National Assembly seats necessary to unseat Lahoud.34 Hezbollah, together
with the Amal Movement and other partners, took over a quarter
of the parliamentary seats; two of its members were appointed to cabinet
posts in Prime Minister Fouad Siniora’s government.35 But the postelection
political arrangements proved fragile. In December 2005, the
Hezbollah-Amal coalition walked out of the government when the National
Assembly agreed to a joint Lebanese and international tribunal to
try those accused in al-Hariri’s death.36 Siniora was forced to make concessions
to secure Hezbollah’s return. In particular, he agreed never to
refer to the organization as a “militia,” and adopted an official position
that “[t]he government regards the Lebanese resistance a true and natural
expression of the natural right of the Lebanese people in defending its
territory and dignity by confronting the Israeli threat and aggression
. . . .”37 By characterizing Hezbollah as a resistance group, Siniora
effectively conceded the “legal fiction” that the Resolution 1559
requirement for militia disarmament did not apply to the organization.
Despite this victory, Hezbollah had been weakened by the “Cedar
Revolution,” the departure of the Syrians, and Lebanese political infighting.
It needed to somehow recapture momentum. In retrospect, it
appears that Hezbollah concluded that terrorist operations offered
promise in this regard. In November 2005, Hezbollah fired mortars and
rockets across the Blue Line against IDF positions and facilities. Its
forces also assaulted government offices and IDF positions in Ghajar,
purportedly in an attempt to kidnap Israeli soldiers. Other actions against
Israel followed.
Hezbollah moved quickly to strengthen its forces and stockpile arms.
By mid-summer of 2006, the organization fielded two to three thousand
fighters and thousands of rockets, some of which could reach far into
Israel. Moreover, Nasrallah had proclaimed that he intended to kidnap
Israeli soldiers and use them as bargaining chips in a prisoner exchange;
2006 was to be “the year of retrieving prisoners.”38 The threat was highly
credible, for in October 2000, Hezbollah fighters had crossed into Israel
and kidnapped three soldiers. It killed them, using their bodies as bargaining
chips in a 2004 prisoner exchange.39
Sensitive to the ominous situation, then-Secretary General Kofi
Annan and other U.N. representatives repeatedly called on the Lebanese
Government to move south and exert control over the border areas.40
Their concerns proved well-founded. When Hezbollah mounted
Operation True Promise on July 12, 2006, Israel responded with
Operation Change Direction. The subsequent exchanges proved heavy.
Hezbollah launched 125 rockets on July 13, 2006, 103 on the following
day, and 100 on July 15.41 On July 14, a Hezbollah rocket struck an
Israeli warship, killing two sailors. The incident was especially
noteworthy, for at the time some experts believed the attack had been
mounted using radar data provided to Hezbollah from a Lebanese
military radar site.42
For its part, Israel offered a seventy-two hour ultimatum for release
of the captives and cessation of the rocket attacks.43 In the meantime, it
declared an air and naval blockade of Lebanon, conducted air strikes,
and engaged in limited cross border operations designed to foil rocket
launches. Many of the initial targets, such as the Rafik al-Hariri
International Airport in Beirut and bridges throughout the country, were
lines of communication.44 Israel hoped to prevent the removal of its
kidnapped soldiers by cutting them. By late July, the IDF was moving
into southern Lebanon; on August 9, it launched ground operations
extending well beyond the border.45 Two days later, the Security Council
passed Resolution 1701, in which it called for “the immediate cessation
by Hizbollah of all attacks and the immediate cessation by Israel of all
offensive military operations.”46 A ceasefire agreement soon followed,
and hostilities ended on August 14. Israeli troops had completely withdrawn
from Lebanon by October.
II. The Israeli Legal Justification
As noted previously, Israel, in announcing its readiness to take “appropriate”
steps to secure the release of its soldiers and force a halt to the
rocket attacks, justified its military actions on the basis of self-defense
pursuant to Article 51 of the U.N. Charter.47 Somewhat precipitously, it
pointed the finger of blame not only at Hezbollah, but also Syria, Iran
and Lebanon.
Responsibility for this belligerent act of war lies with the Government
of Lebanon, from whose territory these acts have been
launched into Israel. Responsibility also lies with the Governments
of the Islamic Republic of Iran and the Syrian Arab
Republic, which support and embrace those who carried out this
attack.

These acts pose a grave threat not just to Israel’s northern border,
but also to the region and the entire world. The ineptitude
and inaction of the Government of Lebanon has led to a situation
in which it has not exercised jurisdiction over its own territory
for many years. The Security Council has addressed this situation
time and time again in its debates and resolutions. Let me
remind you also that Israel has repeatedly warned the international
community about this dangerous and potentially volatile
situation. In this vacuum festers the Axis of Terror: Hezbollah
and the terrorist States of Iran and Syria, which have today
opened another chapter in their war of terror.
Today’s act is a clear declaration of war, and is in blatant violation
of the Blue Line, Security Council resolutions 425 (1978),
1559 (2004) and 1680 (2006) and all other relevant resolutions
of the United Nations since Israel withdrew from southern
Lebanon in May 2000.48
In great part, the Israelis attributed Hezbollah’s actions to Lebanon
on the basis of its failure to control the south. A special Cabinet communiqué
issued the day of the Hezbollah attacks noted that “Israel views the
sovereign Lebanese Government as responsible for the action that originated
on its soil and for the return of the abducted soldiers to Israel.
Israel demands that the Lebanese Government implement U.N. Security
Resolution 1559.”49 Prime Minister Ehud Olmert added a second ground,
Hezbollah’s participation in the Lebanese government:
This morning’s events were not a terrorist attack, but the action
of a sovereign state that attacked Israel . . . The Lebanese government,
of which Hizbullah is a member, is trying to undermine
regional stability. Lebanon is responsible and Lebanon will bear
the consequences of its actions.50
The extent to which Israel initially focused responsibility on Lebanon
was perhaps best illustrated by IDF Chief of Staff Lieutenant
General Dan Halutz’s threat to “turn back the clock in Lebanon by 20
years.”51
A November 2006 U.N. Human Rights Council report also drew a
close connection between Hezbollah and Lebanon. In an analysis of the
separate issue of whether an “armed conflict” between Israel and Lebanon
existed,52 the report noted that
[I]n Lebanon, Hezbollah is a legally recognized political party,
whose members are both nationals and a constituent part of its
population. It has duly elected representatives in the Parliament
and is part of the Government. Therefore, it integrates and participates
in the constitutional organs of the State. . . .
[F]or the public in Lebanon, resistance means Israeli occupation
of Lebanese territory. The effective behavior of Hezbollah in
South Lebanon suggests an inferred link between the Government
of Lebanon and Hezbollah in the latter’s assumed role over
the years as a resistance movement against Israel’s occupation of
Lebanese territory. . . .
Seen from inside Lebanon and in the absence of the regular
Lebanese Armed Forces in South Lebanon, Hezbollah constituted
and is the expression of the resistance (‘mukawamah’) for
the defense of the territory partly occupied. . . .
Hezbollah had also assumed de facto State authority and control
in South Lebanon in non-full implementation of Security Council
resolutions 1559 (2004) and 1680 (2006) . . . . 53
A Lebanese Cabinet policy statement of May 2005 had similarly
characterized Hezbollah as a resistance force.54 Enhancing the purported
relationship was Nasrallah’s leadership not only of Hezbollah’s military
wing, but also the political wing that was participating in government;
neither faction advocated a peaceful solution to the dispute with Israel.

As Israel saber-rattled, Lebanon quickly denied culpability. In letters
of July 13 to the U.N. Secretary-General and Security Council President,
it claimed that “the Lebanese Government was not aware of the events
that occurred and are occurring on the international Lebanese border”
and that “the Lebanese Government is not responsible for these events
and does not endorse them.”55 Two days later, in an “Address to the People,”
Prime Minister Siniora again distanced himself from the attacks,
denying any prior knowledge thereof.56 Secretary-General Kofi Annan
accepted the Lebanese disclaimer.57
Israel quickly backed away from assertions that the July 12 attacks
were attributable to Lebanon, at least in the normative context of selfdefense.
On the sixteenth, the Cabinet issued a communiqué that declared,
“Israel is not fighting Lebanon but the terrorist element there, led
by Nasrallah and his cohorts, who have made Lebanon a hostage and
created Syrian- and Iranian-sponsored terrorists enclaves of murder.”58
Similarly, a Ministry of Foreign Affairs briefing paper prepared shortly
before the conflict ended stated that although Lebanon bore responsibility
“for the present situation, and consequently, . . . could not expect to
escape the consequences. . . . Israel views Hamas, Hizbullah, Syria and
Iran as primary elements in the Jihad/Terror Axis threatening not only
Israel but the entire Western world.”59 As to Lebanon’s responsibility, the
paper deviated from the attitude adopted at the outset of hostilities:
Israel did not attack the government of Lebanon, but rather
Hizbullah military assets within Lebanon. Israel avoided striking
at Lebanese military installations, unless these were used to assist
the Hizbullah, as were a number of radar facilities which
Israel destroyed after they helped the terrorists fire a shore-toship
missile at an Israeli ship.60
In fact, Israel assiduously avoided striking Lebanese government facilities
and equipment, at least absent an express link to Hezbollah.
While the earlier referenced Human Rights Council report cites a number
of instances in which the IDF struck Lebanese military targets, the
discussion is marked by the paucity of examples: a military airfield, radar
installations (recall that Lebanese radar facilitated the anti-ship
missile attack of July 14), and an army barracks.61 Given the wherewithal
of the Israeli Air Force, the catalogue would undoubtedly have been far
lengthier had Israel wished to engage Lebanon militarily.62
Thus, by war’s end, Israel was steering clear of arguments that Hezbollah
actions amounted to a Lebanese “armed attack” by the terms of
Article 51. Whether correct as a matter of law, tempering comments on
the linkage represented sage policy. First, Israel needed the Lebanese
army to move south to fill the security void its withdrawal would leave if
it hoped to avoid another long occupation of southern Lebanon. Second,
little was to be gained in styling Operation Change Direction as a response
to a Lebanese “armed attack” because Israeli military operations
could more convincingly be legally justified as a direct response to Hezbollah.
Third, conflict between States in the volatile Middle East is
always potentially contagious; therefore, for practical reasons, it is usually
best to avoid portrayal of hostilities as inter-State. Finally, as will be
discussed, the international community gingerly accepted Israel’s need
to defend itself against the increasingly frequent Hezbollah attacks. Limiting
the finger pointing to Hezbollah would fit better within the
prevailing international frame of reference, an important consideration in
light of the fact that the international community’s assistance would
likely prove helpful in securing the border areas. It would also avoid a
direct conflict with U.N. Secretary-General Annan, who early on
adopted the position that the Lebanese government had no advance notice
of the July 12 attacks and that the Hezbollah actions ran counter to
the interests of the Lebanese government and people.63
Widespread, albeit cautious, acceptance of the legitimacy of the Israeli
defensive response to Hezbollah emerged. It was certainly apparent
in the Security Council discussions of July 14.64 Similarly
Secretary-General Annan acknowledged “Israel’s right to defend itself
under Article 51 of the United Nations Charter.”65 So too did individual
States and their leaders.66 In the Arab world, Saudi Arabia criticized
Hezbollah’s “uncalculated adventures,” a reproach echoed by Jordan,
Egypt, and the United Arab Emirates.67 Indeed, Nasrallah complained
that such censure made possible the harsh Israeli reaction.68 Arab support
only dissipated in the aftermath of Israel’s July 30 bombing of Qana,
during which twenty-eight civilians died.69 The Group of Eight (G8),
which was coincidentally meeting in July, condemned Hezbollah actions,
and called on Lebanon to assert its “sovereign authority” over the
south, while the European Union made clear that it considered the right
to self-defense applicable.70 In the United States, both the Senate and
House of Representatives passed resolutions condemning the attacks
against Israel.71 Finally, the Security Council clearly indicated in Resolution
1702 that Hezbollah’s attacks of July 12 had precipitated events.72
Such acceptance is an important indicator of the operational code,
the unofficial, but actual normative system governing international
actions.73 In other words, when seeking to identify the applicable law, it
is essential to ascertain how the relevant international actors, especially
States, interpret and apply the lex scripta. Only then can norms be understood
with sufficient granularity to assess an action’s legality. It is to
those norms that analysis turns.
III. Legal Analysis
Self-defense under Article 51 of the U.N. Charter was the claimed
legal basis for Operation Change Direction. In addition to Hezbollah,
Israel initially pointed the finger of blame at Lebanon. This raises the
natural question of whether the attacks and kidnappings of July 12,
2006, can be attributed to Lebanon such that Israel was justified in characterizing
them as an attack by Lebanon itself.
In that Israel’s self-defense justification eventually centered on Hezbollah,
and given the international community’s seeming acceptance of
that position, the issue of an “armed attack” attributable to Lebanon is
not determinative. Nevertheless, a colorable argument can be fashioned
to the effect that Hezbollah’s actions were equally Lebanon’s, at least as
a matter of law. In particular, Hezbollah’s participation in the Lebanese
government and the government’s apparent recognition of the organization
as a legitimate resistance group support such a depiction.
Article 8 of the International Law Commission’s Articles of State
Responsibility provides that an action carried out “on the instructions of,
or under the direction or control of, the State” amounts to an “act of a
State.”74 Hezbollah’s inclusion in the Lebanese government, considered
in light of Nasrallah’s control over both the organization’s political and
military wings, is relevant in this regard. Yet, there is no evidence that
the Hezbollah parliamentarians or cabinet members directed or were
otherwise involved in the attacks, or that the Lebanese government controlled
the organization, either directly or indirectly. Neither could
Hezbollah be fairly characterized as “an organ placed at the disposal of a
State by another State” or an entity that “exercised elements of the governmental
authority in the absence or default of the official authorities
and in circumstances such as to call for the exercise of those elements of
authority” pursuant to Articles 6 and 9, respectively. The organization
did not qualify as an “organ” in the meaning of the former, nor was the
situation in southern Lebanon of the nature envisioned by the latter.75
Even when actions qualify as acts of State for responsibility purposes,
Article 50 bars the use of forceful countermeasures in response to
a breach short of an “armed attack” under Article 51 (absent a Security
Council mandate).76 Therefore, when assessing the Israeli response, the
question is when a non-State armed group’s actions can be attributed to a
State for self-defense purposes.
It has long been recognized that support for non-State armed groups
can amount to an armed attack by the State supporter.77 The International
Court of Justice has addressed the subject on multiple occasions. In the
1986 Nicaragua judgment, it found that a non-State actor’s actions could
amount to an armed attack if the group in question was “sen[t] by or on
behalf” of a State and the operation, in light of its “scale and effects,”
“would have been classified as an armed attack . . . had it been carried
out by regular armed forces.”78 In support of its position, the Court cited
Article 3(g) of the General Assembly’s 1974 Definition of Aggression
[3314 (XXIX)], which was characterized as reflective of customary international
law.79 The ICJ confirmed this “effective control” standard in
its 2005 Congo and 2007 Genocide decisions.80
The Nicaragua standard has proven controversial. In 1999, the Appeals
Chamber of the International Criminal Tribunal for the Former
Yugoslavia rejected it in Tadic. At issue was the existence of an international
armed conflict in Bosnia-Herzegovina by virtue of the Federal
Republic of Yugoslavia’s relationship with Bosnian Serb forces. In finding
such a conflict, the Chamber adopted a more relaxed standard than
that articulated by the ICJ. For the Chamber, the key was “overall control
going beyond the mere financing and equipping of such forces and
involving also participation in the planning and supervision of military
operations.”81 Both the effective control and overall control standards
would exclude providing sanctuary or otherwise acquiescing to the presence
of terrorists from the ambit of “armed attack.” Since no evidence
exists of a substantive Lebanese government link to the July 12 Hezbollah
attacks, the relationship between Lebanon and Hezbollah met neither
the Nicaragua “effective” nor the Tadic “overall” control tests.
In 2005, Judge Kooijmans, in his separate opinion in the Congo
case, noted that the Court had failed to take “a position with regard to the
question whether the threshold set out in the Nicaragua judgment is still
in conformity with contemporary international law in spite of the fact
that that threshold has been subject to increasingly severe criticism ever
since it was established in 1986.”82 He was perceptive. The ICJ ignored
the operational code evident in the international community’s reaction to
2001 Coalition attacks against the Taliban (the de facto government of
Afghanistan). Taliban support for al Qaeda fell far below the bar set in
either Nicaragua or Tadic. Nevertheless, most States approved of Operation
Enduring Freedom, with many offering material support.83 No
international organization or major State condemned the operations. On
the contrary, a month after the launch of operations, the Security Council
condemned the Taliban “for allowing Afghanistan to be used as a base
for the export of terrorism by the Al-Qaida network and other terrorist
groups and for providing safe haven to Usama Bin Laden, Al-Qaida and
others associated with them.” Additionally, it expressed support for “the
efforts of the Afghan people to replace the Taliban regime.”84
Had the operational code for attributing attacks by non-State actors
to States been relaxed? The precise parameters of any emergent standard
remained unclear because the community reaction to attacks on the Taliban
may merely have reflected a sense of relief over ouster of
international pariahs, rather than a relaxation of the norms governing the
use of force against States tied to terrorism. But if the bar had been lowered,
the new standard could arguably apply to Lebanon. Like the
Taliban, the Lebanese government allowed Hezbollah sanctuary when it
failed to move south, as it had agreed to do in the 1989 Ta’if Accords,85
and as the United Nations and Israel had demanded.86 With organized
armed forces under its control, Lebanon presumably had more capacity
to deny sanctuary to Hezbollah than did the Taliban vis-à-vis al Qaeda.
Ultimately, attributing the July 12, 2006, attacks to Lebanon is problematic.
True, the Lebanese President had expressed support for
Hezbollah, the Cabinet had recognized it as performing legitimate resistance
functions, Hezbollah exercised government functions in the south,
and the failure of Lebanese forces to take control of the area could be
characterized as providing sanctuary. On the other hand, the organization
was not an organ of government empowered by Lebanese law, there is
no evidence that the Hezbollah cabinet ministers participated in the decision
to strike Israel and kidnap its soldiers, the government did not direct
or control the operations, many Lebanese officials opposed Hezbollah,
and the Lebanese government publicly, officially, and quickly distanced
itself from the attacks.
Israel correctly grasped that there was a much firmer normative
foundation on which to base Operation Change Direction—self-defense
against Hezbollah itself. Prior to the terrorist strikes of September 11,
2001 (9/11), it might have been plausible to suggest that Article 51 applied
only to attacks by State actors.87 Those conducted by non-State
actors lay, so the argument went, in the realm of domestic and international
criminal law enforcement.88
Article 51, however, contains no reference to whom the offending
armed attack must be mounted by, before qualifying for a defensive reaction
as a matter of law. Similarly, Articles 39 and 42 (which together
comprise the other exception to the Article 2(4) prohibition on the use of
force) do not limit the source of a threat to the peace, breach of peace, or
act of aggression to States.89 Beyond pure textual analysis, the Security
Council has never restricted enforcement actions to those directed
against States; for instance, it has created international tribunals to
prosecute individuals charged with crimes against humanity, war crimes,
and genocide.90
By contrast, Article 2(4) specifically pertains to the use of force by
“Member states” in their “international relations” (i.e., relations with
other States). This suggests that the drafters were sensitive to the textual
scope of the articles. From an interpretive standpoint, it would resultantly
be incongruous to add a State “attacker” criterion to the law of
self-defense.
A construal of Article 51 that included non-State actor attacks had
already been advanced by some members of the academy prior to the
attacks of September 11. For instance, Professor Oscar Schachter argued
a decade earlier that “[i]t is clear that terrorist attacks against State officials,
police or military units are attacks on a State wherever they occur.
Attacks on private persons and private property may also be regarded as
attacks upon a state when they are intended to intimidate and strike fear
in order to compel that State to take, or refrain from, political action.”91
Similarly, Professor Yoram Dinstein has long maintained the right of a
State to engage in “extraterritorial law enforcement” against attacks by
non-State actors.92
Moreover, it must be remembered that the locus classicus of the international
law of self-defense, the nineteenth century Caroline incident,
involved non-State actors.93 During the 1837 Mackenzie Rebellion in
Canada, rebel forces sought refuge in New York State, where they also
recruited from among a sympathetic population. On December 20, 1837,
British forces boarded the Caroline, a steamer used for travel between
the United States and rebel bases, while it was docked in Schlosser, New
York. Of the thirty-three crewmembers and others on board, only twelve
survived the onslaught. The attackers set the Caroline ablaze and sent it
adrift over Niagara Falls.
An exchange of diplomatic notes ensued, with the British claiming
that self-defense necessitated the action, particularly in light of the
American failure to police its own territory. In 1841, the incident took a
strange turn when New York authorities arrested one of the alleged British
attackers, a Mr. McLeod, who, while intoxicated, had boasted of
participating in the incident. The British demanded McLeod’s release,
arguing that he was acting on behalf of the Crown in legitimate selfdefense.
The arrest resulted in a further exchange of diplomatic notes
between U.S. Secretary of State Daniel Webster and his British counterparts,
in particular Lord Ashburton.94 The contents of those notes,
discussed infra, became immortalized as the origin of the modern law of
self-defense.95 Thus, self-defense traces its normative lineage to an attack
by a non-State actor.
In any event, it appeared as if the international community’s reaction
to the September 11 attacks had settled the issue. The very day after the
terrorists struck, when no one was pointing the finger of blame at any
State, the Security Council adopted Resolution 1368, which acknowledged
the inherent right of self-defense in the situation.96 On September
28, the Council reaffirmed 1368 in Resolution 1373.97 NATO and the
Organization of American States activated the collective defense provisions
of their respective treaties (which are expressly based on Article
51),98 and Australia initiated planning to join the United States in military
operations pursuant to the ANZUS Pact.99 Forty-six nations issued declarations
of support, while twenty-seven granted overflight and landing
rights.100 State practice seemed to be demonstrating comfort with an operational
code extending Article 51 to armed attacks by non-State actors.
Further evidence of this understanding of the scope of self-defense
appeared as the U.S.-led coalition responded on October 7, 2001, with
strikes against al Qaeda (and Taliban) targets. In its notification to the
Security Council that it was acting pursuant to Article 51, the United
States confirmed that it considered the article applicable to the terrorist
group.101 Subsequent State practice proved supportive. The Australia,
Canada, the Czech Republic, Germany, Italy, Japan, the Netherlands,
New Zealand, Turkey, and the United Kingdom provided ground
troops.102 Georgia, Oman, Pakistan, the Philippines, Qatar, Saudi Arabia,
Tajikistan, Turkey, and Uzbekistan allowed U.S. military aircraft to transit
through their airspace and provided facilities to support operations.103
China, Russia, and Arab states such as Egypt expressed acceptance of Operation
Enduring Freedom.104 The European Union depicted the military
operations as “legitimate under the terms of the United Nations Charter
and of Resolution 1368 of the United Nations Security Council.”105 The
Security Council adopted repeated resolutions reaffirming the right to
self-defense in the context of the conflict in Afghanistan.106 It is undeniable
that post-9/11 practice demonstrated the applicability of Article 51
to attacks by non-State actors.
Or so it seemed. In 2004, the International Court of Justice appeared
to ignore this demonstrable history in its polemical Advisory Opinion,
Legal Consequence of the Construction of a Wall in the Occupied Palestinian
Territory.107 Faced with claims that self-defense justified
construction of the Israeli security fence, the Court found Article 51 irrelevant
because Israel had not averred that the terrorist attacks the wall
was intended to thwart were imputable to a State.108 Judges Higgins,
Kooijmans, and Buergenthal rejected the majority position, correctly
pointing out the absence in Article 51 of any reference to a State as the
originator of an “armed attack,” as well as the Security Council’s selfevident
characterization of terrorist attacks as armed attacks in, inter
alia, Resolutions 1368 and 1373.109
Despite this telling criticism, in Armed Activities on the Territory of
the Congo, the Court again failed to address the issue head on, inquiring
only into whether a State, the Democratic Republic of Congo, was responsible
for the actions of a non-State actor, the Allied Democratic
Forces, such that Uganda could act in self-defense against Congo.110 In
his separate opinion, Judge Kooijmans cogently maintained the position
that a non-State actor could mount an armed attack.
If the activities of armed bands present on a State’s territory
cannot be attributed to that State, the victim State is not the ob-
ject of an armed attack by it. But if the attacks by the irregulars
would, because of their scale and effects, have had to be classified
as an armed attack had they been carried out by regular
armed forces, there is nothing in the language of Article 51 of
the Charter that prevents the victim State from exercising its inherent
right of self-defence.111
Judge Simma criticized the Court on the same basis, chastising it for
avoiding its responsibility for clarifying the law in a case directly on
point.
Such a restrictive reading of Article 51 might well have reflected
the state, or rather the prevailing interpretation, of the international
law on self-defence for a long time. However, in the light
of more recent developments not only in State practice but also
with regard to accompanying opinio juris, it ought urgently to be
reconsidered, also by the Court. As is well known, these developments
were triggered by the terrorist attacks of September 11,
in the wake of which claims that Article 51 also covers defensive
measures against terrorist groups have been received far more
favourably by the international community than other extensive
re-readings of the relevant Charter provisions, particularly the
“Bush doctrine” justifying the pre-emptive use of force. Security
Council resolutions 1368 (2001) and 1373 (2001) cannot but be
read as affirmations of the view that large-scale attacks by non-
State actors can qualify as “armed attacks” within the meaning
of Article 51.112
International reaction to Operation Change Direction demonstrated
that the Court was swimming against the tide of the extant operational
code. Although it might have been arguable that the supportive reaction
to defensive strikes against al Qaeda (as distinct from law enforcement
endeavors) was an anomaly deriving from the horror attendant to the
9/11 attacks, it would be incongruous to analogously dismiss the international
community’s seeming acceptance of Israel’s right to act
defensively against Hezbollah. What the Court failed to acknowledge is
that international law is dynamic, that if it is to survive, it has to reflect
the context in which it is applied, as well as community expectations as
to its prescriptive content.
While the negotiating records of the United Nations Charter contain
no explanation of the term “armed attack,” it would seem logical that
hostile actions by non-State actors must, like those conducted by States,
reach a certain level before qualifying as an “armed attack.”113 For instance,
in Nicaragua, the International Court of Justice excluded “mere
frontier incidents” from the ambit of “armed attacks.”114 Although the
exclusion proved controversial,115 plainly the mere fact that an incident
occurs along a border does not disqualify it as an armed attack. As noted
by Sir Gerald Fitzmaurice in 1952 in response to a Soviet request to include
“frontier incidents” in a proposed Definition of Aggression, “What
exactly does this mean? There are frontier incidents and frontier incidents.
Some are trivial, some may be extremely grave.”116 Although a
frontier incident of sorts, Hezbollah’s actions on July 12 certainly rise to
the level of armed attack.117 They were planned in advance, complex in
the sense of including multiple components (abduction and rocket attacks),
and severe (kidnapping, death, destruction of property).118
Actions in self-defense against armed attacks, whether from a non-
State group such as Hezbollah or a State, are subject to the same core
criteria, which trace their roots to the Caroline case, discussed above. In
one of the incident’s diplomatic exchanges, Secretary of State Webster
argued:
Under these circumstances, and under those immediately connected
with the transaction itself, it will be for Her Majesty’s
Government to show upon what state of facts, and what rules of
national law, the destruction of the Caroline is to be defended. It
will be for that Government to show a necessity of self-defence,
instant, overwhelming, leaving no choice of means, and no moment
for deliberation. It will be for it to show, also, that the local
authorities of Canada, even supposing the necessity of the moment
authorized them to enter the territories of the United States
at all, did nothing unreasonable or excessive; since the act, justified
by the necessity of self-defence, must be limited by that
necessity, and kept clearly within it.119
The three universally accepted criteria of self-defense appear in the
extract: 1) necessity (“necessity of self-defence” and “no choice of
means”); 2) proportionality (“nothing unreasonable or excessive”); and
3) immediacy (“instant, overwhelming” and “leaving no moment for
deliberation”). These requirements matured into, and remain, the normative
catechism of self-defense.120 The International Court of Justice
recognized the first two as customary international law in Nicaragua;121 a
decade later it applied them to Article 51 self-defense in the advisory
opinion, Legality of the Threat or Use of Nuclear Weapons.122 The Court
has recently confirmed the criteria in Oil Platforms (2003)123 and Congo
(2005).124 Immediacy, the third criterion, is irrelevant when assessing
Operation Change Direction because the Hezbollah attacks pre-date the
Israeli response and continued throughout the IDF operations.
Conceptually, necessity is a qualitative criterion, whereas proportionality
is quantitative. Reduced to basics, necessity requires the
absence of adequate non-forceful options to deter or defeat the armed
attack in question. This does not mean that non-forceful measures would
not contribute to defense of the State. Rather, necessity requires that “but
for” the use of force, they would not suffice.
Necessity analysis is always contextual, for the utility of nonforceful
measures is situation specific. In the case of Operation Change
Direction, a key variable was that Hezbollah—an entity historically resistant
to diplomatic, economic, and other non-forceful actions and
dedicated to the destruction of Israel—had carried out the attacks and
kidnappings. Additionally, precedent existed that is directly on point, as
to the futility of non-forceful measures in circumstances resembling
those precipitating Operation Change Direction. Recall the 2000
kidnapping of IDF soldiers and the use of their bodies in a prisoner exchange.
History seemed to be repeating itself.
The most likely alternative to Israeli action was, of course, immediate
Lebanese action to: 1) control those lines of communication
Hezbollah might use to whisk the captives out of the country, 2) recover
the soldiers, and 3) extend military control over the south such that the
area could no longer be used as a base of operations, especially for
rocket attacks. However, the necessity criterion does not require naivety.
As noted previously, extension of Lebanese government authority into
the south had been a cornerstone of the Ta’if Accords ending the civil
war in 1989.125 Further, in Resolutions 1559 (2004) and 1680 (2006), the
Security Council had emphasized the urgency of exerting government
control throughout the country by disarming and disbanding Lebanese
and non-Lebanese militia.126 Yet, the Lebanese government had done
nothing; on the contrary, it appeared that Hezbollah was growing militarily
stronger. By the summer of 2006, Hezbollah had between two and
three thousand regular fighters, with up to ten thousand reserves.127 Hezbollah’s
arsenal included not less than twelve thousand rockets. Most
were short range Katyushas, but the organization also possessed Iranian
supplied Zelzal-2s, with a range of two hundred ten kilometers, sufficient
to strike deep into Israel.128 It was evident that action by the
Lebanese government, particularly given its political disarray over the
past year, did not represent a viable alternative to Israeli use of force.
Another possible alternative was deferral to action by the international
community, much as Israel had done in 1991 when Saddam
Hussein launched Scud missile attacks against Israeli population centers
during the “First Gulf War.” However, the situation in 2006 was dramatically
different. No friendly forces were engaged against Hezbollah, as
the Coalition had been with Iraqi forces, and UNIFIL was patently impotent.
The two States enjoying influence over Hezbollah, Iran and Syria,
offered little promise; the leader of the first had called for Israel’s destruction,
129 while the latter was technically at war with Israel.130 Finally,
over the years the United Nations had demonstrated a marked inability to
resolve matters in the area, Security Council politics generally precluded
strong Chapter VII action, and previous U.N. entreaties to Lebanon and
Hezbollah had failed to achieve meaningful results. In any event, the attacks
were underway and nothing in Article 51 (or the customary law of
self-defense) required Israel to yield to any other entity in defending itself.
On the contrary, Article 51 expressly allows a State to act
defensively in the face of an armed attack “until the Security Council has
taken measures necessary to maintain international peace and security.”
131 The Security Council had taken no such step, nor did it purport to
have done so. Operation Change Direction clearly met the necessity criterion
of self-defense.
The other relevant self-defense criterion is proportionality. Proportionality
deals with the degree of force permissible in self-defense; it
allows the application of no more force than required, in the attendant
circumstances, to deter an anticipated attack or defeat one that is underway.
In other words, while necessity mandates a consideration of
alternatives to the use of force, proportionality requires its calibration.
Proportionality is frequently misapplied in one of two ways. First,
the degree of force employed by the defender is sometimes assessed
through comparison to that used by the aggressor on the basis of a false
premise that the former may not exceed the latter. Yet, proportionality
requires no such symmetry between the attacker’s actions and defender’s
response.132 Operation Change Direction is paradigmatic. Although the
IDF response exceeded the scope and scale of the Hezbollah kidnappings
and rocket attacks many fold, the only way effectively to have
prevented movement of the hostages was to either destroy or control
lines of communication. Further, the best tactic for preventing Hezbollah
rocket attacks, especially from mobile launchers, was through control of
the territory from which they were being launched.
The second common misapplication of the proportionality principle
confuses the jus ad bellum criterion of proportionality, under consideration
here, with the jus in bello principle by the same name. The latter prohibits
“an attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military
advantage anticipated.”133 It considers the consequences of individual or
related operations, not the scope of a response to an armed attack.134 Proportionality
in the jus in bello context is fully divorced from that resident
in the jus ad bellum—the autonomy of the two bodies of law is international
law holy gospel.
Most critics of Operation Change Direction in the jus ad bellum context
focus on the proportionality criterion. The U.N. Secretary-General,
for example, condemned Israeli operations on the ground that they had,
borrowing the words of the Prime Minister Siniora, “torn the country to
shreds,” thereby producing results that ran counter to the Israeli need for
the Lebanese military to exert its authority over southern Lebanon.135
Similarly, the European Union criticized Israel for acting in violation of
the principle of proportionality.136
But recall that to breach the proportionality norm, the defender must
do more than reasonably required in the circumstances to deter a threatened
attack or defeat an ongoing one. On July 13, Hezbollah fired one
hundred twenty-five rockets into Israel. The next day, one hundred three
were launched, with one hundred impacting Israeli territory. The IDF
entered Lebanon by force on July 22, a day after ninety-seven rockets
had been fired. Nevertheless, the number of rocket attacks actually grew
following the Israeli movement north. In all, Hezbollah rockets killed
forty-four civilians and one hundred nineteen IDF soldiers, while
wounding nearly one thousand five hundred.137 It is self-evident, therefore,
that, at least vis-à-vis operations designed to stop rocket attacks,
Israeli actions were proportionate (indeed, arguably insufficient).
More problematic from a proportionality perspective were Israeli
operations targeting lines of communication. In particular, the IDF
bombed Beirut International Airport, 109 Lebanese bridges, and 137
roads, and established air and naval blockades.138 According to the Israelis,
these steps were designed to frustrate any spiriting of the hostages
out of the country and to keep Hezbollah from being re-supplied.139 As a
general matter of operational art,140 attacking lines of communication
also allows an attacker to isolate the battlefield, an especially useful
strategy in Lebanon, given the concentration of Hezbollah in the south.
That a nexus existed between the stated objectives and the targets selected
is apparent. The Israelis had intelligence that indicated there might
be an attempt to remove the hostages from Lebanon and Hezbollah arms
had been smuggled into Lebanon from abroad, especially from Syria and
Iran. Interestingly, though, the lines of communication strikes provoked
little discussion as to whether the IDF had gone too far in the jus ad bellum
sense. Instead, debate focused on two jus in bello questions: 1) did
the targets qualify as military objectives;141 and 2) even if they did, was
the expected harm to civilians and civilian property excessive relative to
the anticipated military advantage.142 The international community also
condemned the effect the approach had on humanitarian assistance for
the Lebanese civilian population and the movement of displaced persons.
143
It does not seem possible objectively to portray Operation Change
Direction as disproportionate from the jus ad bellum point of view.
Characterizing an action as disproportionate can be justified on two
grounds. First, the action may be so excessive relative to defensive needs
that the situation speaks for itself—res ipsa loquitur. That was clearly
not the case with Operation Change Direction, for Hezbollah continued
to conduct anti-Israeli attacks. By definition, therefore, the operation
cannot be styled as overly broad, at least absent an argument that the
Israeli actions were inept.
Moreover, the Hezbollah actions of July 12 must be assessed contextually.
The organization had been attacking Israel for a period measured
in decades; no indication existed that it would desist from doing so in the
future.144 As noted by Judge Rosalyn Higgins, the present President of
the International Court of Justice, “[p]roportionality cannot be in relation
to any specific prior injury—it has to be in relation to the overall legitimate
objective, of ending the aggression or reversing the invasion.”145
Viewed in this way, the only truly effective objective from the defensive
perspective was, as noted by the Israeli Ambassador to the United States,
“Hezbollah neutralization.”146 The law of self-defense does not require
half-measures.
Second, an action is disproportionate when a reasonably available alternative
military course of action employing significantly lesser force
would have successfully met the defensive aims. Allegations of disproportionality
are impossible to evaluate in the absence of an asserted
viable alternative.
The Report of the Human Rights Council’s Commission of Inquiry
exemplifies misapplication of the principle of proportionality. Although
not tasked with conducting a jus ad bellum investigation, the group nevertheless
opined that:
[W]hile Hezbollah’s illegal action under international law of 12
July 2006 provoked an immediate violent reaction by Israel, it is
clear that, albeit the legal justification for the use of armed force
(self-defence), Israel’s military actions very quickly escalated
from a riposte to a border incident into a general attack against
the entire Lebanese territory. Israel’s response was considered by
the Security Council in its resolution 1701(2006) as “offensive
military operation”. These actions have the characteristics of an
armed aggression, as defined by General Assembly resolution
3314 (XXIX).147
The Council noted that self-defense “is subject to the conditions of
necessity and proportionality,” citing Nicaragua and Nuclear Weapons as
support.148 The discussion of the escalation from riposte to general attack
implies that the Commission believed a violation of the latter criterion
had occurred. Yet, the report failed to explain how a riposte, or even a
border action, would have sufficed to meet Israel’s pressing defensive
needs. In particular, the Commission did not consider escalation in the
context of Hezbollah’s ongoing rocket attacks. Without such granularity,
its appraisal was purely conclusory; absent a mandate to render such an
evaluation, it was irresponsible.
Curiously, a normatively more mature review came from Israeli official
corners. According to the April 2007 interim report of the Winograd
Commission, which Prime Minister Olmert established (and which was
approved by the Cabinet) following widespread criticism of the conduct
of the war,
The decision to respond with an immediate, intensive military
strike was not based on a detailed, comprehensive and
authorized military plan, based on careful study of the complex
characteristics of the Lebanon arena. A meticulous examination
of these characteristics would have revealed the following: the
ability to achieve military gains having significant politicalinternational
weight was limited; an Israeli military strike would
inevitably lead to missiles fired at the Israeli civilian north; there
was not another effective military response to such missile
attacks than an extensive and prolonged ground operation to
capture the areas from which the missiles were fired—which
would have a high “cost” and which did not enjoy broad support.
These difficulties were not explicitly raised with the political
leaders before the decision to strike was taken.
Consequently, in making the decision to go to war, the
government did not consider the whole range of options,
including that of continuing the policy of ‘containment’, or
combining political and diplomatic moves with military strikes
below the ‘escalation level’, or military preparations without
immediate military action—so as to maintain for Israel the full
range of responses to the abduction. This failure reflects
weakness in strategic thinking, which deprives the response to
the event from a more comprehensive and encompassing
picture.149
Ultimately, the Winograd Commission concluded that the Prime
Minister displayed “serious failure in exercising judgment, responsibility
and prudence.”150
This criticism could be interpreted as reflecting elements of both necessity
and proportionality; necessity in the sense that diplomatic and
political moves should have been employed, and proportionality in that
military action below the “escalation level” might have sufficed. But it is
necessary to distinguish between legal violation and strategic failing.
The law does not mandate selection of the best option; it requires that
the choice made be reasonable in the circumstances as reasonably perceived
by the actor at the time. Thus, although the Winograd Interim
Report articulated sensible alternatives, the mere existence of such alternatives
does not establish a breach of the proportionality criterion. On
the contrary, recall that: the 2000 incident involving the capture of Israeli
soldiers had ended tragically, the Hezbollah missile arsenal had grown
since the Israeli withdrawal, the Lebanese Army had failed to deploy
south, the Lebanese government was fractured and in disarray, and Hezbollah
enjoyed the ability to sit on the border and dictate escalation. The
situation had become so complex by the summer of 2006 that no particular
course of action was self-evidently optimal.
Assuming, arguendo, that the Israeli defensive actions were both
necessary and proportional, and assuming for the sake of analysis that
the Hezbollah attacks cannot be classed as a Lebanese “armed attack,”
the question of whether Israel had the right to cross into sovereign Lebanese
territory to conduct counter-terrorist operations remains. The
conundrum lies in the existence of conflicting international law rights—
Israel’s right of self-defense, discussed above, and Lebanon’s right of
territorial integrity.151
Territorial integrity lies at the core of the State-centric international
legal architecture, and, thus, the general inviolability of borders is wellentrenched
in international law. Indeed, the U.N. Charter’s sine qua non
principle, the prohibition on the use of force found in Article 2(4), expressly
bars cross-border uses of force by singling out territorial
integrity.152 On the other hand, self-defense is no less a cornerstone of
international law; it represents the sole use of force unambiguously permitted
without Security Council sanction.
Beyond possessing rights, States also shoulder obligations in international
law. Of particular relevance with regard to Operation Change
Direction is the duty to police one’s own territory to preclude its use to
the detriment of other States. As John Basset Moore noted in the classic
1927 Permanent Court of Justice case, The S.S. Lotus, “it is well settled
that a State is bound to use due diligence to prevent the commission
within its dominions of criminal acts against another nation or its people.”
153 The International Court of Justice reaffirmed this obligation in its
very first case, Corfu Channel.154 In relevant part, the underlying incident
involved two British warships, which struck mines in Albanian waters
while transiting the Corfu Straight. The Court concluded that since the
mines could not have been laid without its knowledge, Albania bore responsibility
based on “certain general and well recognized principles,”
including “every State’s obligation not to allow knowingly its territory to
be used for acts contrary to the rights of others.”155 The Court reiterated
the point in United States Diplomatic and Consular Staff in Tehran,
which involved seizure by Iranian radicals of the U.S. Embassy in Tehran
and consulates in Tabriz and Shiraz, as well as the taking hostage of
American diplomats and other citizens.156 There, the Court held that
Iran’s failure to protect the diplomatic premises and subsequent refusal
to act to free the hostages violated its “obligations under general international
law.”157
Soft-law instruments further support an obligation to police one’s
territory. For instance, the International Law Commission’s 1954 Draft
Code of Offences against the Peace and Security of Mankind labels “the
toleration of the organization of . . . [armed] bands in its own territory, or
the toleration of the use by such armed bands of its territory as a base of
operations or as a point of departure for incursions into the territory of
another State . . . .” an offence against “the peace and security of mankind.”
158 Similarly, the 1970 General Assembly Declaration on
Principles of International Law Concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United
Nations Resolution provides that “[e]very State has the duty to refrain
from organizing, instigating, assisting or participating in acts of civil
strife or terrorist acts in another State or acquiescing in organized activities
within its territory directed towards the commission of such acts,
when the acts referred to in the present paragraph involve a threat or use
of force.”159
In terms of State practice, the most useful contemporary reference
point is al Qaeda’s use of Afghanistan as a base of operations. In 1999,
the Security Council imposed sanctions on the Taliban government for,
in part, granting sanctuary to Osama bin Laden and for permitting al
Qaeda “to operate a network of terrorist training camps from Talibancontrolled
territory and to use Afghanistan as a base from which to sponsor
international terrorist operations . . . .”160 It insisted that the Taliban
“cease the provision of sanctuary and training for international terrorists
and their organizations, take appropriate effective measures to ensure
that the territory under its control is not used for terrorist installations
and camps, or for the preparation or organization of terrorist acts against
other States or their citizens, and cooperate with efforts to bring indicted
terrorists to justice.” Included was a specific demand that the Taliban
turn over Osama bin Laden.161 The following year, the Council levied
additional sanctions after the Taliban failed to expel al Qaeda; it established
a sanctions monitoring mechanism in 2001.162
Of even greater normative weight was the absence of international
condemnation when the United States attacked Afghanistan after the
Taliban failed to heed post-9/11 warnings to turn over Bin Laden and rid
the country of terrorists.163 While, as discussed, the legitimacy of translating
the non-reaction into a new norm regarding State support of
terrorism is questionable, it is certainly evidence of a community conviction
that Afghanistan had not met its obligations to police its territory.
Given the aforementioned hard law, soft law, and State practice, any
formula for resolving a conflict between one State’s right to self-defense
and another’s right of territorial integrity must include the fact that the
need for conducting the defensive operations arises only when the latter
fails to meet its policing duties. But territorial integrity must equally be
factored into the formula. Therefore, before a State may act defensively
in another’s territory, it must first demand that the State from which the
attacks have been mounted act to put an end to any future misuse of its
territory.164 If the sanctuary State either proves unable to act or chooses
not to do so, the State under attack may, following a reasonable period
for compliance (measured by the threat posed to the defender), nonconsensually
cross into the latter’s territory for the sole purpose of conducting
defensive operations. The victim State may not conduct
operations directly against sanctuary State forces and must withdraw as
soon as its defensive requirements have been met.165 Since the victim
State has a legal right to act defensively, the sanctuary State may not interfere
with the defensive operations so long as they meet the
aforementioned criteria. If it does, it will have itself committed an armed
attack against which the victim State may use force in self-defense.
This proposition is far from novel; rather, it is, reduced to basics, the
Caroline case.166 Recall that the United Kingdom demanded the United
States put an end to the use of its territory by rebel forces. It was only
after U.S. authorities failed to comply that British forces crossed the
border in a form of self-help. Those forces withdrew immediately on
capture and destruction of the Caroline. As noted by Lord Ashburton in
his correspondence with Secretary of State Webster,
I might safely put it to any candid man, acquainted with the existing
state of things, to say whether the military commander in
Canada had the remotest reason, on the 29th day of December,
to expect to be relieved from this state of suffering by the protective
intervention of any American authority. How long could a
Government, having the paramount duty of protecting its own
people, be reasonably expected to wait for what they had then no
reason to expect?167
The facts underlying the British actions were even less compelling
than those in the instant case. Although New York authorities were sympathetic
to the Canadian rebels, they were not in breach of international
demands that control be established over the territory in question. Further,
the United States was actively enforcing the laws of neutrality.168
In their separate opinions in the Congo case, Judges Kooijmans and
Simma took a stance similar to that presented here. As Simma perceptively
noted,
Judge Kooijmans points to the fact that the almost complete absence
of governmental authority in the whole or part of the
territory of certain States has unfortunately become a phenomenon
as familiar as international terrorism. I fully agree with his
conclusions that, if armed attacks are carried out by irregular
forces from such territory against a neighbouring State, these activities
are still armed attacks even if they cannot be attributed to
the territorial State, and, further, that it “would be unreasonable
to deny the attacked State the right to self-defence merely because
there is no attacker State and the Charter does not so
require so.169
How could it be otherwise?170
The standards set forth apply neatly to Operation Change Direction.
Following its withdrawal from Lebanon in 2000, Israel repeatedly demanded
that Lebanon move south to secure the area from Hezbollah and
other terrorist attacks. The international community did so as well. However,
Lebanon took no steps to put an end to the misuse of its territory;
on the contrary, it seemed to embrace, albeit somewhat guardedly, Hezbollah.
Either it chose not to police the south or it could not, but
whatever the case, it did not, thereby opening the door for Israeli defensive
action.
Moreover, Israel moved in a very measured, stepped fashion. Its initial
operations were mostly limited to air attacks and the naval blockade.
Ground force operations took place only in the border areas. It was not
until September 9 that the IDF launched large-scale ground operations
into southern Lebanon, and, even then, they were confined geographically
to the area south of the Litani River. Operation Change Direction
was also confined temporally. The entire operation lasted a mere thirtyfour
days, at which point a ceasefire was negotiated that provided for an
Israeli withdrawal and, at least in theory, safeguarded Israel’s security
along its northern border. Finally, although Israel did strike Lebanese
military targets, it is at least arguable that the facilities struck supported
Hezbollah operations, as in the case of the radar stations used in support
of the strike on the Israeli warship.
IV. Conclusion
Operation Change Direction remains a subject of continuing controversy,
although most criticism centers on the jus in bello. With regard to
the jus ad bellum, there is relative agreement that Israel had the right to
respond to the Hezbollah attacks pursuant to the law of self-defense. Its
response comported with the various requirements set forth in that body
of law. Operation True Promise rose to the level of an “armed attack” as
that term is understood normatively, and the Israeli response met both
the necessity and immediacy criteria. Although disagreement exists over
compliance with the criterion of proportionality, when Operation Change
Direction is considered in the context of not only the July 12 Hezbollah
attacks, but also those which had preceded them and those which likely
would have followed, the standard was met.
A colorable argument can be fashioned that Lebanon also bore legal
responsibility for the attacks, perhaps even to the extent that it could be
treated as having conducted them itself. This is especially so in light of
the heightened scrutiny to which State support of terrorism is subject in
the aftermath of the September 11, 2001, attacks against the United
States. However, such an argument, which can be questioned as a matter
of law, need not be made, for the law of self-defense provided an adequate
foundation for the Israeli actions.
In terms of the continuing construction of the normative architecture
governing the use of force, Operation Change Direction is relevant in
two important regards. First, it serves as further evidence of an operational
code extending the reach of self-defense to armed attacks
conducted by non-State actors. Despite the apparent unwillingness of the
International Court of Justice to acknowledge that the law of selfdefense
now reaches such actions, State practice demonstrates acceptance
by the international community. Second, Operation Change
Direction serves as an excellent illustration of the growing acceptability
of cross-border counter-terrorist operations when the State in which terrorists
are located fails to comply with the duty to police its own
territory.
These issues loomed large on the international legal horizon following
the attacks of September 11. Reaction to the Coalition response,
Operation Enduring Freedom, suggested that the international community
had come to interpret Article 51 as allowing an Article 51 response
against non-State actors, including a non-consensual penetration of another
State’s territory to carry it out. However, operations against al
Qaeda and the Taliban made for weak precedent because both groups
were globally reviled. Operation Change Direction, therefore, serves as
an important milestone in crystallizing the operational code in such matters.

 

 

 

* Dean, George C. Marshall European Center for Security Studies, Garmisch-
Partenkirchen, Germany; 2007–08 Charles H. Stockton, Visiting Professor of International
Law, United States Naval War College.
1. The title “Operation True Promise” derived from the “promise” by Hezbollah Secretary-
General Hasan Nasrallah to capture Israeli soldiers, who would in turn be exchanged
for prisoners held by the Israelis. Amnesty Int’l, Under Fire: Hizbullah’s Attacks on Northern
Israel 1, AI Index MDE 02/025/2006, Sept. 2006. For a factual summary of the conflict, see
GlobalSecurity.org, Operation Change Direction, http://www.globalsecurity.org/military/
world/war/lebanon-change-of-direction-chron1.htm.
2. Permanent Representative of Israel to the United Nations, Identical Letters Dated
12 July 2006 from the Permanent Representative of Israel to the United Nations addressed to
the Secretary-General and the President of the Security Council, U.N. Doc. A/60/937,
S/2006/515 (July 12, 2006) [hereinafter July 12, 2006 Letters].
3. For a contemporary treatment of the subject, see generally Ian Brownlie, International
Law and the Use of Force by States (1963); Yoram Dinstein, War,
Aggression and Self-Defence (Cambridge University Press 4th ed. 2005) (1988).
4. U.N. Charter art. 2, ¶ 4 (“All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United Nations.”).
5. U.N. Charter art. 39.
6. Id. art. 41.
7. Id. art. 42.
8. The Council authorized an increase to 15,000 troops and expanded the mandate to
include monitoring the ceasefire, accompanying and supporting the Lebanese armed forces as
they deployed south following the Israeli withdrawal, assisting the humanitarian relief effort
and the return of displaced persons, assisting the Lebanese government in the demilitarization
of the area (except for Lebanese armed forces and UNIFIL), and helping to secure the Lebanese
borders. S.C. Res. 1701, ¶ 11, U.N. Doc. S/RES/1701 (Aug. 11, 2006); see generally
United Nations Department of Peacekeeping Operations, UNIFIL, http://www.un.org/Depts/
dpko/missions/unifil/index.html.
9. U.N. Charter art. 51.
10. Id. art 51. The Israeli government complied with the requirement the day it
launched Operation Change Direction. See July 12, 2006 Letters, supra note 2.
11. The jus in bello is also known as the law of war, the law of armed conflict and international
humanitarian law. For excellent contemporary surveys of the subject, see Yoram
Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict
(2004); A.P.V. Rogers, Law on the Battlefield (2d ed. 2004).
12. Common Article 2 to the four 1949 Geneva Conventions provides that the conventions
apply in “all cases of declared war or of any other armed conflict.” Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
art. 2, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention (I)];
Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked
Members at Sea, art. 2, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva
Convention (II)]; Geneva Convention Relative to the Treatment of Prisoners of War, art. 2,
Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention (III)]; Geneva
Convention Relative to the Treatment of Civilian Persons in Time of War, art. 2, Aug. 12,
1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention (IV)]. The Preamble to
the 1977 Additional Protocol I similarly provides that “the provisions of the Geneva Conventions
of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all
persons who are protected by those instruments, without any adverse distinction based on the
nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties
to the conflict.” Protocol Additional (I) to the Geneva Conventions of 12 August 1949 and
Relating to the Protection of Victims of International Armed Conflicts, pmbl., June 8, 1977,
1125 U.N.T.S. 3 [hereinafter Additional Protocol I].
13. On jus in bello issues in the conflict, see generally U.N. Gen. Assembly, Hum. Rts.
Council, Comm’n of Inquiry on Leb., Implementation of General Assembly Resolution 60/251 of
15 March 2006 Entitled “Human Rights Council”: Report of the Commission of Inquiry on
Lebanon Pursuant to Human Rights Council Resolution S-2/1, U.N. Doc. A/HRC/3/2 (Nov.
23, 2006) [hereinafter Human Rights Council Report on Lebanon]; Human Rights Watch, Why
They Died: Civilian Casualties During the 2006 War, Vol. 19, No. 5(E) (Sept. 2007); Amnesty
Int’l, Israel/Lebanon: Deliberate Destruction or “Collateral Damage”? Israeli Attacks on
Civilian Infrastructure (Aug. 23, 2006), available at http://www.amnesty.org/en/library/info/
MDE18/007/2006 (last visited Mar. 11, 2008); Isr. Ministry of Foreign Aff., Israel’s War with
Hizbullah: Preserving Humanitarian Principles While Combating Terrorism, Diplomatic Note
No. 1 (Apr. 2007), http://www.mfa.gov.il/NR/rdonlyres/74D04C9D-FA73-4A54-8CBADBCB1152C82E/
0/DiplomaticNotes01.pdf [hereinafter Israel’s War].
14. Jeremy M. Sharp et al., Cong. Res. Serv. Report for Congress, Lebanon:
The Israel-Hamas-Hezbollah Conflict, Report No. RL33566, at 2 (Sept. 15, 2006).
15. Which in turn contributed to the 15-year internal conflict (1975–1990) between
various Lebanese political and religious factions.
16. See Ahron Bregman, Israel’s Wars 150–52 (2d ed. 2002).
17. S.C. Res. 426, ¶ 2, U.N. Doc. S/RES/426 (Mar. 19, 1978); S.C. Res. 425, ¶ 3, U.N.
Doc. S/RES/425 (Mar. 19, 1978).
18. In 1981, Israel launched attacks into Beirut against targets allegedly tied to terrorist
attacks. The Security Council condemned the Israeli response and demanded cessation of
operations. S.C. Res. 490, U.N. Doc. S/RES/490 (July 21, 1981).
19. There had been prior attacks by Palestinian groups; the attempted assassination of
Ambassador Shlomo Argov was merely the final straw for the Israelis.
20. For a discussion of the legal aspects of the operation, see Barry Feinstein, The Legality
of the Use of Force by Israel in Lebanon—June 1982, 20 Isr. L.R. 362 (1985). The
Security Council immediately called for withdrawal of the Israeli forces and respect for the
sovereignty of Lebanon. S.C. Res. 508, ¶ 1, U.N. Doc. S/RES/508 (June 5, 1982); S.C. Res.
509, U.N. Doc. S/RES/509 (June 6, 1982). In 1983, negotiations led to a peace treaty between
Israel and Lebanon, but the Lebanese National Assembly, under Syrian pressure, did not ratify
it; the following year Lebanese President Amin Gemayel cancelled the agreement. Sharp et
al., supra note 14, at 35.
21. Audrey Kurth Cronin et al., Cong. Res. Serv. Report for Congress, Foreign
Terrorist Organizations, Report No. RL32223, at 34–35 (Feb. 6, 2004). On Israeli
assertions regarding Syrian and Iranian support, see Isr. Ministry of
Foreign Aff., Statement by Foreign Ministry Deputy Director-General Gideon Meir
(July 13, 2006), http://mfa.gov.il/MFA/About+the+Ministry/MFA+Spokesman/2006/Statement+
by+Foreign+Ministry+Deputy+DG+Gideon+Meir+13-Jul-2006.htm.
22. Cronin et al., supra note 21, at 34–35.
23. Sharp et al., supra note 14, at 35.
24. S.C. Res. 1310, U.N. Doc. S/RES/1310 (July 27, 2000); see also The Secretary
General, Letter dated 24 July 2000 from the Secretary-General addressed to the President of
the Security Council, U.N. Doc S/2000/731 (July 24, 2000); The Secretary-General, Report of
the Secretary General on the United Nations Interim Force in Lebanon (for the period from 17
January to 17 July 2000), ¶¶ 6–11, U.N. Doc. S/2000/718 (July 20, 2000).
25. Sharp et al., supra note 14, at 11 n.21. Israel extended its laws to Shab’a Farms in
1981 in an act the Security Council condemned. S.C. Res. 497, U.N. Doc. S/RES/497 (Dec.
17, 1981).
26. For instance, in 2002, it murdered five civilians in a roadside shooting. See Isr.
Ministry of Foreign Aff., Behind the Headlines: The Second Lebanon War—One Year
Later (July 12, 2007), http://www.mfa.gov.il/MFA/About+the+Ministry/Behind+the+
Headlines/The+Second+Lebanon+War+-+One+year+later+-+July+2007.htm.
27. Paul Adams, Fears Mounting of Another Israeli War with Hezbollah, Globe &
Mail (Canada), Dec. 13, 2002, at A8.
28. S.C. Res. 1680, ¶¶ 4–6, U.N. Doc. S/RES/1680 (May 17, 2006); S.C. Res. 1655,
¶¶ 6–8, U.N. Doc. S/RES/1655 (Jan. 31, 2006); S.C. Res. 1614, ¶ 6, U.N. Doc. S/RES/1614
(July 29, 2005); S.C. Res. 1583, ¶ 4, U.N. Doc. S/RES/1583 (Jan. 28, 2005); S.C. Res. 1559,
¶¶ 4–5, U.N. Doc. S/RES/1559 (Sept. 2, 2004); S.C. Res. 1553, ¶ 4, U.N. Doc. S/RES/1553
(July 29, 2004); S.C. Res. 1525, ¶ 4, U.N. Doc. S/RES/1525 (Jan. 30, 2004); S.C. Res. 1496,
¶ 4, U.N. Doc. S/RES/1496 (July 31, 2003); S.C. Res. 1461, ¶ 5, U.N. Doc. S/RES/1461 (Jan.
30, 2003); S.C. Res. 1428, ¶¶ 5, 7, U.N. Doc. S/RES/1428 (July 30, 2002); S.C. Res. 1391,
¶¶ 5, 7, U.N. Doc. S/RES/1391 (Jan. 28, 2002); S.C. Res. 1365, ¶¶ 5, 7, U.N. Doc.
S/RES/1365 (July 31, 2001); S.C. Res. 1337, ¶¶ 5–6, U.N. Doc. S/RES/1337 (Jan. 30, 2001);
S.C. Res. 1310, ¶¶ 6–7, U.N. Doc. S/RES/1310 (July 27, 2000).
29. Not only did Lebanon fail to exert physical control over Hezbollah controlled territory,
it refused to freeze the organization’s financial assets. Cronin et al., supra note 21, at
36.
30. The National Assembly amended the Constitution to make this possible; previously,
the President’s term had been limited to six years. Central Intelligence Agency, Lebanon,
in The World Factbook, Lebanon 330 (2007).
31. S.C. Res. 1559, supra note 28.
32. The agreement called for “spreading the sovereignty of the State of Lebanon over
all Lebanese territory” through the “disbanding of all Lebanese and non-Lebanese militias”
and the delivery of their weapons “to the State of Lebanon within a period of six months.” The
Secretary-General, Report of the Secretary General Pursuant to Security Council Resolution
1559 (2004), ¶ 8, U.N. Doc. S/2004/777 (Oct. 1, 2004).
33. The Secretary-General, First Semi-Annual Report of the Secretary-General to the
Security Council on the Implementation of Resolution 1559 (2004), ¶ 45, U.N. Doc.
S/2005/272 (Apr. 26, 2005). Blue Line is the territory to which Israel withdrew in 2000.
34. Two-thirds of the National Assembly seats are required in order to unseat Lahoud.
See Augustus Richard Norton, Hezbollah: A Short History 30 (2007).
35. Mohammed Fneish was appointed to an Energy and Water post, and Trad
Hamadeh a Labor post. Central Intelligence Agency, Lebanon, Chiefs of State and Cabinet
Members, available at https://www.cia.gov/library/publications/world-leaders-1/worldleaders-
l/lebanon.html (last visited Mar. 11, 2008); see also So Who’s Running the Show?;
Lebanon’s Government, Economist, July 29, 2006, at 57.
36. As of March 2008, the Special Tribunal (hybrid United Nations-Lebanese) for
Lebanon was still in the process of being established to address the assassination. See, e.g.,
U.N. Doc. SG/A/1124 (Mar. 10, 2008) (regarding the appointment of Robert Vincent of the
United Kingdom to the Registrar for the Tribunal); S.C. Res. 1757, U.N. Doc. S/RES/1757
(May 30, 2007) (endorsing annexed agreement into force); S.C. Res. 1664, U.N. Doc.
S/RES/1664 (Mar. 29, 2006).
37. Human Rights Council Report on Lebanon, supra note 13, at 130 n. 32.
38. Lara Deeb, Hizbullah: A Primer, Middle East Report Online, July 31, 2006,
http://www.merip.org/mero/mero073106.html (last visited Mar. 11, 2008); Int’l Crisis Group,
Israel/Palestine/Lebanon: Climbing Out of the Abyss, Middle East Report, July 25, 2006, at
10, available at http://www.crisisgroup.org/home/index.cfm?id=4282.
39. Israel’s War, supra note 13, at 2; see supra note 1 and accompanying text.
40. The Secretary-General, Report of the Secretary-General on the United Nations
Interim Force in Lebanon (For the Period from 22 July 2005 to 20 January 2006), ¶ 12, U.N.
Doc. S/2006/26 (Jan. 18, 2006).
41. Israel’s War, supra note 13, at 23 app. A.
42. Anthony H. Cordesman, Preliminary “Lessons” of the Israel-Hezbollah
War 17–18 (Ctr. for Strategic & Int’l Stud., Working Draft for Outside Comment, 2d rev. ed.
2006), available at http://www.csis.org/media/csis/pubs/060817_isr_hez_lessons.pdf.
43. Israel’s War, supra note 13, at 8.
44. A “line of communications” is a “route, either land, water, and/or air, that connects
an operating military force with a base of operations and along which supplies and military
forces move.” U.S. Joint Chiefs of Staff, Dep’t of Defense, Dictionary of Military
Terms and Associated Terms, Joint Publication 1–02, as amended through 17 October 2007,
available at http://www.dtic.mil/doctrine/jel/doddict.
45. The decision to do so was taken by the Israeli Cabinet. Isr. Ministry of Foreign
Aff., Political-Military Cabinet Resolution (Aug. 9, 2006), available at http://
www.mfa.gov.il/MFA/Government/Communiques/2006/Political-Security+Cabinet+ resolution+
9-Aug-2006.htm. For the Israeli justification of the step, see Isr. Ministry of Foreign
Aff., Behind the Headlines: Israel’s Counter Terrorist Campaign (Aug. 15, 2006), available
at http://www.mfa.gov.il/MFA/About+the+Ministry/Behind+the+Headlines/Israels+counter
+terrorist+campaign+-+FAQ+18-Jul-2006.htm.
46. S.C. Res. 1701, supra note 8.
47. See supra notes 2, 8–10 and accompanying text.
48. July 12, 2006 Letters, supra note 2.
49. Cabinet Secretariat, Isr. Ministry of Foreign Aff., Special Cabinet Communiqué—
Hizbullah Attack (July 12, 2006), available at http://www.mfa.gov.il/MFA/Government/
Communiques/2006/Special+Cabinet+Communique+-+Hizbullah+attack+12-Jul-2006.htm.
50. Ehud Olmert, Israeli Prime Minister, Press Conference, PM Olmert: Lebanon is Responsible
and Will Bear the Consequences (July 12, 2006), available at http://
www.mfa.gov.il/MFA/Government/Communiques/2006/PM+Olmert+-Lebanon+is+responsible+
and+will+bear+the+consequences+12-Jul-2006.htm.
51. Chris McGreal, Capture of Soldiers was “Act of War” says Israel, Guardian
(London), July, 13, 2006, at 1.
52. The existence of an armed conflict bears on the issue of whether international humanitarian
law applies during the conflict. According to the U.N. Human Rights Council’s
Commission of Inquiry on Lebanon, the conflict qualified as an “international armed conflict”
to which Israel, Hezbollah and Lebanon were parties. Human Rights Council Report on Lebanon,
supra note 13, ¶ 55.
53. Id. ¶¶ 56–57 (explaining that although done so in the context of the jus in bello, the
Commission of Inquiry found that Hezbollah constituted a “militia” belonging to a Party to
the conflict within the meaning of Article 4A(2) of the Third Geneva Convention); see also
Geneva Convention (III), supra note 12, art. 4(2).
54. Human Rights Council Report on Lebanon, supra note 13, ¶ 32.
55. Chargé d’affairs of the Permanent Mission of Lebanon to the United Nations, Identical
Letters dated 13 July 2006 from the Chargé d’affairs a.i. of the Permanent Mission of
Lebanon to the United Nations addressed to the Secretary-General and the President of the
Security Council, U.N. Doc. A/60/938, S/2006/518 (July 13, 2006).
56. Prime Minister Fouad Siniora, Address to the Lebanese People (July 15, 2006),

http://www.lebanonunderseige.gov.lb/english/F/eNews/NewsArticle.asp?CNewsID=17.

57. The Secretary-General, Statement to the Security Council, U.N. SCOR, 61st Sess.,
5492 mtg. at 3, U.N. Doc. S/PV.5492 (July 20, 2006) [hereinafter Secretary General Statement
July 20, 2006]. At the time, Lebanon was not on the United States State Department list of
State sponsors of terrorism. U.S. Department of State, Office of Coordinator for Counterterrorism,
Country Reports on Terrorism (Apr. 28, 2006), available at http://www.state.gov/
s/ct/rls/crt/2005/64337.htm.
58. Isr. Cabinet Secretariat, Cabinet Communiqué (July 16, 2006), http://
www.mfa.gov.il/MFA/Government/Communiques/2006/Cabinet+Communique+16-Jul-2006.htm.
59. Israel’s Counter Terrorist Campaign, supra note 45.
60. Id.; see also U.N. SCOR, 61st. Sess., 5503d mtg., at 4, U.N. Doc S/PV.5503 (July
31, 2006) (speaking before the Security Council on 31 July, the Israeli Ambassador noted that
Israel had “repeatedly been compelled to act not against Lebanon, but against the forces and
the monstrosity which Lebanon had allowed itself to be taken hostage by”).
61. Human Rights Council Report on Lebanon, supra note 13, ¶ 53.
62. See generally Int’l Inst. for Strategic Stud., The Military Balance 2007
207, 227–29 (2007); Jane’s Info. Group, Jane’s Sentinel: Country Risk Assessments,
Eastern Mediterranean 297–308 (2008).
63. Secretary-General Statement July 20, 2006, supra note 57.
64. See U.N. SCOR, 61st Sess., 5489th mtg., U.N. Doc. S/PV.5489 (July 14, 2006).
China labeled the Israeli actions “armed aggression,” while Qatar called it a “barbaric military
campaign.” Id. at 10–11; see also U.N. SCOR, 61st Sess., 5493rd mtg., U.N. Doc. S/PV.5493
(Resumption 1) (July 21, 2006).
65. Secretary-General Statement July 20, 2006, supra note 57 (condemning Hezbollah,
but also the scope of the Israeli operation).
66. The United States, Australia, and Canada are examples. Israel Acting in Selfdefense,
Says Howard, Austl. Broad. Corp. News Online, July 16, 2006, http://
www.abc.net.au/news/newsitems/200607/s1687707.htm; Hassan M. Fattah & Steven Erlanger,
Israel Blockades Lebanon; Wide Strikes by Hezbollah, N.Y. Times, July 14, 2006, at A1; Jane
Taber, Harper Defends Israel’s Right “to Defend Itself,” Globe & Mail (Canada), July 14,
2006, at A12.
67. Norton, supra note 34, at 136–37.
68. Id. at 137 (referring to an Arabic newscast on al-Jazeera television with Hezbollah
leader Nasrallah on July 21, 2006).
69. Id. at 140.
70. Delegation of the Eur. Comm’n to the United Nations, EU Council Conclusions on
the Middle East (July 17, 2006), http://www.europa-eu-un.org/articles/en/article_6125_
en.htm; U.S. Dep’t of State’s Bureau of Int’l Info. Programs, G8 Statement on Situation
in Middle East (July 16, 2006), http://www.america.gov/st/texttrans-english/2006/July/
20060716150444uhyggep0.5012432.html.
71. S. Res. 534, 109th Cong. (2006) (enacted); H.R. Res. 921, 109th Cong. (2006)
73. It is discerned in part by observing the actual behavior of international elites. An
operational code contrasts with a “myth system,” that is, the law that purportedly applies by
simple reference to the lex scripta. On the distinction, see generally W. Michael Reisman &
James E. Baker, Regulating Covert Action: Practices, Contexts and Policies of
Covert Coercion Abroad in International and American Law 23–24 (1992); W. Michael
Reisman & Aaron M. Schreiber, Jurisprudence: Understanding and Shaping
Law 23–25 (1987); Major Michael N. Schmitt, The Resort to Force in International Law:
Reflections on Positivist and Contextual Approaches 37 A.F.L. Rev. 105, 112–19 (1994).
74. Draft Articles on Responsibility of States for Intentionally Wrongful Acts, in Report
of the International Law Commission on the Work of Its Fifty-third Session, art. 8,
U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), available at http://
untreaty.un.org/ilc/reports/2001/2001report.htm [hereinafter Draft Articles on State Responsibility].
Another approach would focus on Article 4, which provides that the “conduct of any
State organ shall be considered an act of that State under international law . . . .” Organs include
“any person or entity which has that status in accordance with the internal law of the
State.” Id. art. 4. By Article 7, this is so “even if [the organ] exceeds its authority or contravenes
instructions.” Id. art. 7. Although Hezbollah had seats in the National Assembly and
occupied two Cabinet posts, it is untenable to suggest that virtually all Hezbollah members
thereby became agents of the State. Note that the Articles on State Responsibility are “soft
law,” in that they merely attempt to restate customary law.
75. Commentary to Article 6 states that “the organ in question must posses the status of
an organ of the sending State,” whereas that to Article 9 proves that “[s]uch cases occur only
rarely, such as during revolution, armed conflict or foreign occupation, where the regular authorities
dissolve, are disintegrating, have been suppressed or are for the time being
inoperative.” James Crawford, The International Law Commission’s Articles on
State Responsibility: Introduction, Text and Commentaries 105, 114 (2002). On the
issue of responsibility, it should be noted that the International Court of Justice has deemed ex
post facto endorsement of an action sufficient to attribute the act in question to the State.
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, at 79–80
(May 24) [hereinafter Consular Staff in Tehran]. However, in the instant case, the Lebanese
government immediately distanced itself from Hezbollah’s July 12 attacks.
76. See Draft Articles on State Responsibility, supra note 74, art 50.1(a) (“Countermeasures
shall not affect . . . the obligation to refrain from the threat or use of force as embodied
in the Charter of the United Nations . . . .”). Restated, force may only be used in response to
another State’s wrong if said force would otherwise be permissible under the Charter, i.e.,
defensive force in response to an armed attack or actions pursuant to a U.N. Charter, Chapter
VII, Article 42, mandate.
77. See, e.g., Hans Kelsen, Collective Security under International Law 88
n.2 (Naval War College Int’l Law Studies Series No. 49, 1957); Hans Kelsen, Collective Security
and Collective Self-Defense Under the Charter of the United Nations, 42 Am. J. Int’l L.
783, 791–92 (1948).
78. Or “substantial [State] involvement therein.” Military and Paramilitary Activities
(Nicar. v. U.S.), 1986 I.C.J. 14, at 103 (June 27) [hereinafter Nicaragua]. In the case, the
United States argued that its support for the Contra rebels was justified as collective defense
against Nicaragua’s provision of arms and logistical supplies to rebels conducting operations
against El Salvador. The Court rejected the notion that providing supplies and logistic support
amounted to an “armed attack” (although it might be unlawful intervention into another
State’s internal affairs in violation of Article 2(4) of the U.N. Charter). Id..
79. Id.; see also Definition of Aggression, G.A. Res. 3314 (XXIX), U.N. GAOR 6th
Comm., 29th Sess., 2319th plen. mtg., Annex, U.N. Doc. A/RES/3314 (XXIX) (1975).
80. See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda),
2005 I.C.J. 116, at 53 (Dec. 19) [hereinafter Congo]; see also Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. &
Mont.), at ¶¶ 391–392 (Judgment of Feb. 26, 2007), available at http://www.icjcij.
org/docket/files/91/13685.pdf; Congo, 2005 I.C.J. 116, at 6 (separate opinion of Judge
Kooijmans).
81. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, ¶ 145 (July 15, 1999), available
at http://www.un.org/icty/tadic/appeal/judgement/tad-aj990715e.pdf.
82. Congo, 2005 I.C.J. 116, at 6 (separate opinion of Judge Kooijmans) (citation omitted).
83. See Michael N. Schmitt, Counter-Terrorism and the Use of Force in International
Law, in International Law and the War on Terror 7, 16–18 (Fred Borch & Paul Wilson
eds., 2003).
84. S.C. Res. 1378, at 1, U.N. Doc. S/RES/1378 (Nov. 14, 2001).
85. Ta’if Accords, Oct. 22, 1989, available at http://www.al-bab.com/arab/docs/
lebanon/taif.htm.
86. July 12, 2006 Letters, supra note 2.
(enacted).
87. In a 1949 report commenting on the meaning of the term “armed attack” in the
North Atlantic Treaty, the U.S. Senate Foreign Relations Committee suggested that the “words
‘armed attack’ clearly do not mean an incident created by irresponsible groups or individuals,
but rather an attack by one state upon another.” U.S. Senate, Report of the Committee on Foreign
Relations on the North Atlantic Treaty, S. Exec. Report. No. 8, at 13, 81st Cong., 1st
Sess. (1949).
88. Brownlie, supra note 3, at 279 (arguing that even if a non-State actor could mount
an armed attack, “[i]ndirect aggression and the incursions of armed bands can be countered by
measures of defence which do not involve military operations across frontiers”).
89. Use of force pursuant to a mandate of the Security Council. See supra text accompanying
notes 5–7.
90. S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (creating International Criminal
Tribunal for Rwanda); S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) (creating
International Criminal Tribunal for the Former Yugoslavia).
91. Oscar Schachter, International Law in Theory and Practice 164 (1991).
92. Dinstein, supra note 3, at 244–47 (and previous editions).
Extra-territorial law enforcement is a form of self-defence, and it can be undertaken
by Utopia against terrorists and armed bands inside Arcadian territory only in response
to an armed attack unleashed by them from that territory. Utopia is entitled
to enforce international law extra-territorially if and when Arcadia is unable or unwilling
to prevent repetition of that armed attack.
Id. at 247.
93. See generally D.W. Bowett, Self-Defence in International Law 58–60
(1958); R.Y. Jennings, The Caroline and McLeod Cases, 32 Am. J. Int’l L. 82 (1938).
94. See Avalon Project at Yale Law School, Webster-Ashburton Treaty—The Caroline
Case (1997), available at http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-
1842d.htm.
95. McLeod was ultimately acquitted at trial. See Jennings, supra note 93, at 95.
96. S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001).
97. S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).
98. North Atlantic Treaty, Apr. 4 1949, art. 5, 63 Stat. 2241, 34 U.N.T.S. 243; Inter-
American Treaty of Reciprocal Assistance, Sept. 2, 1947, art. 3.1, 62 Stat. 1681, 21 U.N.T.S.
77; Terrorist Threat to the Americas, Res. 1, Twenty-fourth Meeting of Consultation of Ministers
of Foreign Affairs, Terrorist Threat to the Americas, OAS Doc. RC.24/RES.1/01 (Sept. 21,
2001), available at http://www.oas.org/oaspage/crisis/rc.24e.htm; N. Atl. Treaty Org. [NATO],
Press Release (2001) 124, Statement by the North Atlantic Council (Sept. 12, 2001), available
at http://www.nato.int/docu/pr/2001/p01-124e.htm (declaring an attack against the United
States would be treated as an attack against all members).
99. Security Treaty, U.S.-Austl.-N.Z., art. IV, Sept. 1, 1951, 3 U.S.T. 3420, 131
U.N.T.S. 83; Brendan Pearson, PM Commits to Mutual Defence, Austl. Fin. Rev., Sept. 15,
2001, at 9.
100. White House, Fact Sheet: Operation Enduring Freedom Overview (Oct. 1, 2001),

http://www.state.gov/s/ct/rls/fs/2001/5194.htm.

101. Letter Dated 7 October 2001 from The Permanent Representative of the United
States of America to the United Nations Addressed to the President of the Security Council,
U.N. Doc S/2001/946 (Oct. 7, 2007).
102. Sean D. Murphy, Contemporary Practice of the United States Relating to International
Law: Legal Regulation of Use of Force, 96 Am. J. Int’l L. 237, 248 (2002).
103. Id.
104. Id.
105. Declaration by the Heads of State or Government of the European Union and the
President of the Commission: Follow-up to the September 11 Attacks and the Fight Against
Terrorism, Oct. 19, 2002, at 1, SN 4296/2/01 Rev. 2.
106. See, e.g., S.C. Res. 1390, U.N. Doc. S/RES/1390 (Jan. 28, 2002); S.C. Res. 1386,
U.N. Doc. S/RES/1386 (Dec. 20, 2001); S.C. Res. 1378, U.N. Doc. S/RES/1378 (Nov. 14,
2001). Even the Organization of the Islamic Conference appeared to acquiesce. It merely
requested that the operations not extend beyond Afghanistan. Daniel Williams, Islamic Group
Offers U.S. Mild Rebuke; Nations at Conference Avoid Criticizing Strikes on Taliban, Wash.
Post, Oct. 11, 2001, at A21.
107. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136 (July 9) [hereinafter Wall Case].
108. Id. ¶ 139.
109. Id. ¶ 33 (separate opinion of Judge Higgins); id. ¶ 35 (separate opinion of Judge
Kooijmans); id. ¶ 6 (declaration of Judge Buergenthal). Moreover, the question in the two
International Court of Justice cases differed materially. In Nicaragua, the issue was when did
a State’s support of guerrillas justify imputing their acts to the State such that the victim could
respond in self-defense (individually or collectively) directly against the supporter. The Court
did not address the issue at hand in the Wall Case, i.e., whether the actions of a non-State actor
justified the use of force directly against that actor in self-defense.
110. Congo, 2005 I.C.J. 116, at 53.
111. Id. at 7 (separate opinion of Judge Koijmans).
112. Id. at 3 (separate opinion of Judge Simma).
113. The ICJ has distinguished the “most grave” uses of force (armed attacks under
Article 51) from “less grave ones,” i.e., those merely in violation of Article 2(4) of the U.N.
Charter. Nicaragua, 1986 I.C.J. 14, at 101 (June 27). The Court relied heavily on the General
Assembly’s Definition of Aggression Resolution, supra note 79, arts. 2, 3; see also Oil Platforms
(Iran v. U.S.), 2003 I.C.J. 161, at 186 (Nov. 6).
114. Nicaragua, 2005 I.C.J. 116, at 103; see also Oil Platforms, 2003 I.C.J. 161, at 195
(finding that the mining of a single ship could rise to the level of an “armed attack”). The
Court obliquely suggested that a pattern of incidents might exacerbate the severity of a single
incident. Oil Platforms, 2003 I.C.J. 161, at 195.
115. See, e.g., Dinstein, supra note 3, at 195; William H. Taft, IV, Self-Defense and the
Oil Platforms Decision, 29 Yale J. Int’l L. 295, 300 (2004).
116. G.G. Fitzmaurice, Rep. of the U.K., The Definition of Aggression (Extracts from
speech to the United Nations General Assembly), 1 Int’l & Comp. L.Q. 137, 139 (1952).
117. Hezbollah’s actions amounted to an “armed attack,” even by restrictive standards
such as Antonio Cassese’s “very serious attack.” The International Legal Community’s “Legal”
Response to Terrorism, 38 Int’l & Comp. L.Q. 589, 596 (1989).
118. Recall that Hezbollah provided a label for the planned actions, “Operation True
Promise.”
119. Letter from Daniel Webster, U.S. Sec’y of State, to Lord Ashburton (July 27, 1842),
reprinted in 30 British and Foreign State Papers 1840–1841 193 (1858), available at
http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm; for an earlier recitation
of the requirements, see Letter From Daniel Webster, U.S. Sec’y of State, to Henry Fox, British
Minister in Wash. (Apr. 24, 1841), reprinted in 29 British and Foreign State Papers
1840–1841 1137 (1857).
120. The International Military Tribunal at Nuremberg cited the standard when rejecting
the argument that Germany invaded Norway in self-defense in 1940. See generally Judgment,
1 Trial of the Major War Criminals Before the International Military Tribunal
171, 207 (1946); Restatement (Third) of the Foreign Relations Law of the United
States § 905 (1987).
121. Nicaragua, 1986 I.C.J. 14, at 103.
122. Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, at 245 (July 8).
123. Oil Platforms, 2003 I.C.J. 161, at 183, 196–98.
124. Congo, 2005 I.C.J. 116, at 53.
125. See Ta’if Accords, supra note 85.
126. S.C. Res. 1680, supra note 28; S.C. Res. 1559, supra note 28.
127. Anthony H. Cordesman, Lessons of the Israel-Hezbollah War 17 (Ctr. for
Strategic & Int’l Stud. 2007).
128. Norton, supra note 67, at 135.
129. See, e.g., Jim Rutenberg, Bush and Israeli Prime Minister Maintain Tough Front on
Iran, N.Y. Times Int’l, Nov. 14, 2006, at A6 (noting that Iranian leader Mahmoud Ahmadinejad
was quoted in the Iranian media as saying “[w]e will soon witness [Israel’s] disappearance
and destruction”).
130. Dinstein, supra note 3, at 56 (noting that the war is not over because a bilateral
peace agreement has not been concluded).
131. See U.N. Charter art. 51.
132. As noted in a report to the International Law Commission, “[i]t would be mistaken
. . . to think that there must be proportionality between the conduct constituting the armed
attack and the opposing conduct. The action needed to halt and repulse the attack may well
have to assume dimensions disproportionate to those of the attack suffered. What matters in
this respect is the result to be achieved by the ‘defensive’ action, and not the forms, substance
and strength of the action itself.” Robert Ago, Addendum to Eighth Report on State Responsibility,
[1980] 2 Y.B. Int’l L. Comm’n 13, 69, U.N. Doc. A/CN.4/318/ADD.5–7.
133. Additional Protocol I, supra note 12, arts. 51.5(b), 57.2(a)(iii), 57.2(b).
134. Rephrased in the Operation Change Direction context, was the harm to civilians and
civilian property that was likely to have been caused during Israeli strikes on lawful military
objectives excessive relative to the operational benefits Israeli commanders reasonably hoped
to receive therefrom, such that they were disproportionate? Numerous reports on the conflict
allege that certain of the Israeli operations did breach this norm. See, e.g., Human Rights
Council Report on Lebanon, supra note 13, ¶¶ 317–331 (alleging breach of norm occurred);
Human Rights Watch, supra note 13, at 5. But see Israel’s War, supra note 13, at 11–19; Isr.
Ministry of Foreign Aff., Responding to Hizbullah Attacks from Lebanon: Issues
of Proportionality (July 25, 2006), http://www.mfa.gov.il/MFA/Government/Law/Legal
+Issues+and+Rulings/Responding+to+Hizbullah+attacks+from+Lebanon-
+Issues+of+proportionality+July+2006.htm.
135. Secretary-General Statement July 20, 2006, supra note 57, at 3 (noting that “[b]oth
the deliberate targeting by Hizbullah, with hundreds of indiscriminate weapons, of Israeli
population centres and Israel’s disproportionate use of force and collective punishment of the
Lebanese people must stop”).
136. Fattah & Erlanger, supra note 66 (noting that the European Union styled the Israeli
operations a “disproportionate use of force” on July 13).
137. Isr. Ministry of Foreign Aff., Israel-Hizbullah Conflict: Victims of Rocket Attacks
and IDF Casualties (July 12, 2006), http://www.mfa.gov.il/MFA/Terrorism-+Obstacle
+to+Peace/Terrorism+from+Lebanon-+Hizbullah/Israel-Hizbullah+conflict-+Victims+of+rocket
+attacks+and+IDF+casualties+July-Aug+2006.htm.
138. Human Rights Council Report on Lebanon, supra note 13, ¶¶ 136–137.
139. Id. ¶ 146.
140. Dictionary of Military Terms, supra note 44 (defining operational art as consisting
of the “application of creative imagination by commanders and staffs—supported by
their skill, knowledge and experience—to design strategies, campaigns, and major operations
and organize and employ military forces”).
141. Military Objectives are “those objects which by their nature, location, purpose or
use make an effective contribution to military action and whose total or partial destruction,
capture or neutralization, in the circumstances ruling at the time, offers a definite military
advantage.” Additional Protocol I, supra note 12, art. 52.2.
142. See July 12 2006 Letters, supra note 2, at 133–34, and accompanying text.
143. See generally Secretary-General Statement July 20, 2006, supra note 57, at 2; Human
Rights Council Report on Lebanon, supra note 13, ¶ 138.
144. That a series of attacks has occurred bears on the proportionality of the response.
As Robert Ago noted in a report to the International Law Commission, “[i]f . . . a State suffers
a series of successive and different acts of armed attack . . ., the requirement of proportionality
will certainly not mean that the victim State is not free to undertake a single armed action on a
much larger scale in order to put an end to this escalating succession of attacks.” Ago, supra
note 132, at 69–70.
145. Roslyn Higgins, Problems and Process: International Law and How We
Use It 232 (1994).
146. Israeli Ambassador Daniel Ayalon noted, “[w]e will not go part way and be held
hostage again. We’ll have to go for the kill—Hezbollah neutralization.” Robin Wright, Strikes
are Called Part of a Broad Strategy: U.S., Israel Aim to Weaken Hezbollah, Region’s Militants,
Wash. Post, July 16, 2006, at A15.
147. Human Rights Council Report on Lebanon, supra note 13, ¶ 61. The mandate of the
Commission was: “(a) To investigate the systematic targeting and killings of civilians by Israel
in Lebanon; (b) To examine the types of weapons used by Israel and their conformity with
international law; and (c) To assess the extent and deadly impact of Israeli attacks on human
life, property, critical infrastructure and the environment.” Human Rights Council, Resolution
S-2/1, 2d Special Sess., ¶ 7, The Grave Situation of Human Rights in Lebanon Caused by
Israeli Military Operations, U.N. Doc. A/HRC/S-2/2 (Aug. 17, 2006). This mandate hardly
represented an unbiased tasking. Canada, Czech Republic, Finland, France, Germany, Japan,
Netherlands, Poland, Romania, Ukraine, and the United Kingdom voted against the resolution.
Id. at 6.
148. Human Rights Council Report on Lebanon, supra note 13, at 131 n. 37 (citing
Nicaragua, 1986 I.C.J. 14, at 94 (June 27) and Legality of the Threat or Use of Nuclear Weapons,
1996 I.C.J. 226, at 245).
149. Isr. Ministry of Foreign Aff., Winograd Commission Submits Interim Report, ¶ 10
(Apr. 30, 2007), http://www.mfa.gov.il/MFA/Government/Communiques/2007/Winograd
+Inquiry+Commission+submits+Interim+Report+30-Apr-2007.htm; see also Council on
Foreign Relations, Announcement, Winograd Commission Final Report (Jan. 30, 2008),
available at http://www.cfr.org/publication/15385/winograd_commission_final_report.htm.
150. Isr. Ministry of Foreign Aff., supra note 149, ¶ 12.
151. The conduct of major military operations against non-State armed groups in another
State’s territory is not unprecedented. For instance, Turkey has repeatedly conducted opera
tions against the Kurdish Worker’s Party (PKK) in northern Iraq, including bombing attacks in
December 2007 following requests that the United States and Iraq act to stop PKK attacks on
Turkey. Sebnem Arsu, Turkish Warplanes Attack Kurdish Rebel Camps in Iraq, N.Y. Times,
Dec. 27, 2007, at A14. In response to questions on the incidents, a State Department spokesman
noted that “[w]e have a common enemy—Turkey, Iraq, and the United States—in the
form of the PKK. It’s a terrorist organization.” Tom Casey, U.S. Department of State Daily
Press Briefing (Dec. 28, 2007), available at http://www.state.gov/r/pa/prs/dpb/2007/dec/
98143.htm.
152. It has been correctly asserted that the Article 2(4) prohibition extends to nonconsensual
penetrations of a State’s territory not otherwise justified within the framework of
the Charter. Albrecht Randelzhoffer, Article 2(4), in 1 The Charter of the United Nations:
A Commentary 112, 123 (Bruno Simma ed., 2d ed. 2002).
153. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7), at 88 (dissenting
opinion of Judge Moore) (citing for support the U.S. Supreme Court case, United States v.
Arjona, 120 U.S. 479 (1887)).
154. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9).
155. Id. at 22. The British subsequently swept the strait, justifying its action in Albanian
waters as self-help. Id. at 13–25; see generally Brownlie, supra note 3, at 283–89.
156. Consular Staff in Tehran, 1980 I.C.J. 3.
157. Id. at 31; see also Vienna Convention on Consular Relations, Apr. 24, 1963, 21
U.S.T. 77, 596 U.N.T.S. 261; Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23
U.S.T. 3227, 500 U.N.T.S. 95.
158. Draft Code of Offences Against the Peace and Security of Mankind, [1954] 2 Y.B.
Int’l L. Comm’n 149, 150, U.N. Doc. A/CN.4/SER.A/1954/Add.1.
159. G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, at 121, 123, U.N. Doc.
A/8028 (Oct. 24, 1970). The resolution was adopted by acclamation.
160. S.C. Res. 1267, U.N. Doc. S/RES/1267 (Oct. 15, 1999). The sanctions included a
ban on flights to and from Afghanistan and an international freeze on Taliban assets. Id.
161. Id. The previous year it had also demanded that the “Taliban stop providing sanctuary
and training for international terrorists and their organizations, and that all Afghan factions
cooperate with efforts to bring indicted terrorists to justice.” S.C. Res. 1214, U.N. Doc.
S/RES/1214 (Dec. 8, 1998); see also S.C. Res. 1193, U.N. Doc. S/RES/1193 (Aug. 28, 1998).
162. SC Res. 1363, U.N. Doc. S/RES 1363 (July 30, 2001); S.C. Res. 1333, U.N. Doc.
S/RES/1333 (Dec. 19, 2000).
163. On September 28, the Security Council adopted Resolution 1373. The resolution
prohibits States from providing “any form of support, active or passive, to entities or persons
involved in terrorist acts, including by suppressing recruitment of members of terrorist groups
and eliminating the supply of weapons to terrorists” and obligates them to, inter alia, “[t]ake
the necessary steps to prevent the commission of terrorist acts, including by provision of early
warning to other States by exchange of information; [d]eny safe haven to those who finance,
plan, support, or commit terrorist acts, or provide safe havens; [and] [p]revent those who finance,
plan, facilitate or commit terrorist acts from using their respective territories for those
purposes against other States or their citizens.” S.C. Res. 1373, supra note 97, ¶ 2.
164. The United States did so following the attacks of September 11, 2001, both through
Pakistan, which had maintained relations with the Taliban and thereby served as a useful intermediary,
and publicly, for example in President Bush’s address to a joint session of
Congress. Bush demanded that the Taliban “[c]lose immediately and permanently every terrorist
training camp in Afghanistan, and hand over every terrorist and every person in their
support structure to appropriate authorities” and “[g]ive the United States full access to terrorist
training camps, so we can make sure they are no longer operating.” Address Before a Joint
Session of the Congress on the United States, Response to the Terrorist Attacks of September
11, 37 Weekly Comp. Pres. Doc. 1347, 1348 (Sept. 20, 2001). The President of the United
States issued an address stating “[f]ull warning has been given, and time is running out” the
day before Operation Enduring Freedom began. The President’s Radio Address, 37 Weekly
Comp. Pres. Doc. 1429, 1430 (Oct. 6, 2001).
165. On directing actions only against the terrorists, see Bowett, supra note 93, at 56.
166. See supra notes 93–95 and accompanying text.
167. Letter from Mr. Webster to Lord Ashburton, supra note 119, at 195–98.
168. See summary and accompanying letters to the Avalon Project, supra note 94.
169. Congo, 2005 I.C.J. 116, at 3 (separate opinion of Judge Simma); see also id. at 7
(separate opinion of Judge Kooijmans ).
170. This position appears to be increasingly prevalent in academia. In particular, see
Randelzhofer, supra note 152, at 802.
A special situation arises if a State is not reluctant but incapable of impeding acts of terrorism
committed by making use of its territory. Although such terrorist acts are not
attributable to that State, the State victim of the acts is not precluded from reacting by military
means against the terrorist within the territory of the other State. Otherwise, a so-called failed
State would turn out to be a safe haven for terrorists, certainly not what Articles 2(4) and 51 of
the Charter are aiming at.

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