Providing a Right of Self-Defense Against Large-Scale Attacks by Irregular Forces: The Israeli-Hezbollah Conflict

During the escalation of the conflict between Israel and Hezbollah, the U.N. Security Council intervened with Resolution 1701 on August 11, 2006. The ambiguity of this resolution does not appear to provide any help in the debate among political scientists and legal scholars on the highly complex Israeli-Lebanese crisis in understanding the positions of the two parties to the dispute on the basis of norms of international law. One particularly controversial matter is the legality of Israel’s use of armed force in Lebanon. In this regard, Resolution 1701 expresses generic “concern at the continuing escalation of hostilities in Lebanon and in Israel since Hizbollah’s attack on Israel on 12 July 2006;” “[c]alls for a full cessation of hostilities based upon, in particular, the immediate cessation by Hizbollah of all attacks and the immediate cessation by Israel of all offensive military operations”; “[c]alls for Israel and Lebanon to support a permanent ceasefire and a long-term solution” based, in part, on “the disarmament of all armed groups in Lebanon” so that, pursuant to the Lebanese cabinet decision of July 27, 2006, “there will be no weapons or authority in Lebanon other than that of the Lebanese State;” and decides “to authorize an increase in the force strength of UNIFIL [the United Nations Interim Force in Lebanon],” which shall assist the government of Lebanon. This resolution gives rise to certain questions, such as how to define “Hizbollah’s attack” of July 12. It is not clear if it is considered a terrorist attack or whether it is attributable to the Lebanese Government, or to Syria or Iran. Also, the force exercised by Israel is generically referred to in terms of “offensive military operations,” but there is no reference to “aggression” or “occupation.” It appears to me obvious from the entire tenor of Resolution 1701 and the reference to “Hizbollah’s attack on Israel” that this resolution is intended to exclude the hypothesis of a preventive Israeli self-defense against terrorists in Lebanon. The resolution seems to consider the Israeli military action as a response to Hezbollah’s “attack.” However, it cannot be qualified as an “armed attack,” according to Article 51 of the U.N. Charter; therefore, the Israeli “military operations” are qualified as “offensive” since they cannot be regarded as an implementation of the right to self-defense, lacking the necessary requirement of the armed attack. In addition, the resolution makes no reference to any chapter of the U.N. Charter, giving rise to debate among legal scholars about where it should be placed in the U.N. framework. The present study is directed at addressing an important issue – the right of self-defense in the case of armed attack by a non-state armed group. The analysis provides a conceptual framework for describing and critically assessing the contribution of Resolution 1701 to this crucial issue in normative and practical terms. It concludes that Resolution 1701 has actually made a step in the direction of allowing states attacked by non-state actors to retaliate. Some reflections on the position of the resolution in the Charter system are also contained below. But, first of all, mention should be made of an issue in the analysis of the legality of Israel’s use of armed force in Lebanon. This obviously includes the concept of proportionality in the context of legitimate self-defense, which raises questions of methodology as well as others of interpretation and thus requires priority