JURIST Guest Columnist Michael Kelly of Creighton University School of Law says that Article 51 of the UN Charter is probably broad enough to cover Israel's actions against Hezbollah in Lebanon following the kidnappings of its soldiers but would not have excused a pre-emptive strike…
It has been suggested that an overly punitive form of self-defense is now operating in international law, most recently manifested by the muscular Israeli military response to Hezbollah in Lebanon, but begun by the U.S. invasion of Iraq. Those who suggest this fear that the U.N. Charter will be undermined and the right of self-defense under Article 51, traditionally regarded as limited, will be rendered meaningless. I fully share that fear.
But let's not confuse doctrines and threats. The real threat to Article 51's continued vitality as a limit on aggressive military action is the re-emergence of the pre-emptive strike doctrine much more than a rather expansive interpretation of self-defense in response to an attack.
Article 51 provides simply: "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." These terms were universally acknowledged to cover America's invasion of Afghanistan and toppling of the Taliban government after the 9/11 terrorist attacks on the U.S. by al Qaeda. No U.N. Security Council resolution was necessary to cover the military action since Article 51 had been triggered and Article 5 of the North Atlantic Charter brought NATO into play working in concert with U.S. forces. It was inconsequential that neither Afghanistan proper, nor the Taliban government in particular, actually carried out the attacks on New York and Washington; the tolerance and support of the al Qaeda terrorist organization gave rise to an agency type of relationship that imputed liability back to Afghanistan.
In contrast, President Bush could not muster support from either the Security Council or NATO for invading Iraq. Consequently, he had to fit that invasion into the terms of Article 51. The main problem was that the U.S. had not suffered an armed attack. The president's lawyers cleverly argued that the word "inherent" in Article 51 bootstrapped in all the self-defense doctrines that existed at the Charter's signing in 1945. Thus, the pre-emptive strike doctrine (used by Japan against the U.S. in 1941 at that time) survived the Charter and existed within Article 51. However, even that stretch wouldn't cover invading Iraq because the doctrine required the showing of an imminent threat to justify the pre-emptive strike, and Iraq by any measure posed no such threat to the U.S. So it was that the president manufactured the WMD allegations and unilaterally altered the triggering mechanism of the doctrine – lowering it to an emerging threat, which Iraq plausibly would be if it indeed possessed or was creating nuclear weapons.
Israel's invasion of Lebanon is more like the Afghanistan scenario and less like the Iraq scenario. The kidnapping of two Israeli soldiers and killing of three others was an attack, however small, that occurred on Israeli soil and was carried out by a terrorist organization (Hezbollah) tolerated if not supported by Lebanon. Israel's invasion of Lebanon is not a pre-emptive strike.
So does Article 51 cover Israel's action against Lebanon just as it did America's invasion of Afghanistan? Probably. The fundamental question here is what constitutes an "armed attack" sufficient to draw a massive military response? Killing 3 people and kidnapping another 2 at the border is not the equivalent of killing 3,000 people and destroying two skyscrapers in downtown Manhattan. So if this becomes a question of scale, is Hezbollah's provocation the same as al Qaeda's? No. But al Qaeda did not continue attacking the U.S. Hezbollah continues attacking Israel causing more death and destruction with its hundreds of rocket firings all the way to Haifa. Consequently, the question of scale eventually becomes moot, as more and more armed attacks bolster Israel's reliance on Article 51's terms.
That Lebanon suffers for Hezbollah's actions is a point of state responsibility in international law. States are responsible for harmful elements leaving their territory and damaging other states, as was established many years ago in the Trail Smelter case. Before the Charter, reprisal would have been an option. But I don't believe that reprisals or pre-emptive strikes survived the Charter, which now legally occupies the field despite what President Bush asserts to the contrary. Short of a customary norm emerging to support the redirection of Article 51, that provision holds. And it continues to hold and cover situations such as the Israeli invasion. Until the Security Council intervenes, Israel's right of self-defense remains intact. That the U.S. can handily veto Security Council resolutions that seek to terminate Israel's right is an accident of history and lucky for Israel. When Syria was a client state of the Soviet Union years ago, a similar relationship would have been in play.
Disproportionate military responses to armed attacks are not good for the system and not wise to carry out in that they can provoke stronger retaliatory strikes – as Israel has unfortunately witnessed with increasing Hezbollah rocket attacks. However, it is for the initial attacker to judge the likely response and bear the consequences of his attack. Israel's historic responses to armed attacks and strong military capacity speak for themselves, so whoever attacks them should be on notice of what they can expect in return. Attacking the Cayman Islands would draw a much weaker response of course. There are no factual equals among states in this regard, despite the legal maxim that all states are equal under international law.
The lesson: be careful which beehive you whack with a stick. The larger one will produce more stings in response and Article 51 allows for that. What Article 51 does not allow is for the bees to sting you first. Thus, Israel's pre-emptive strike in 1981 against the Osarik nuclear reactor in Baghdad was universally condemned, even by the U.S. However, Israel's recent invasion of Lebanon has not even been condemned by the Arab League and is tacitly supported by Saudi Arabia, Egypt and Jordan.
Michael J. Kelly is Professor of Law at Creighton University School of Law in Omaha, Nebraska. He is the author of Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & the Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang Publishers 2005) with a foreword by Desmond Tutu.
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