Examining Israel's `right to defend itself'
IDF dances within accepted rules of engagement, says Michael Byers
wo years ago, over lunch, I debated self-defence with the lawyer who advises the Israeli Defence Force.
The lawyer in question is a colonel with a Harvard doctorate; the invitation came while I was a visiting professor at the University of Tel Aviv.
After just a few minutes, my host cut to the chase:
"There have been a number of missile attacks along our northern border," she said. "We're going to respond with air strikes against some Hezbollah installations in southern Lebanon next week. What do you think?"
I was taken aback. Governments don't usually consult foreign academics about their military plans. I struggled for a moment.
"Well, for starters, any act of self-defence has to be necessary and proportionate."
The Israeli officer nodded.
"So," I continued, "in order to stay clearly within international law, you should target only those Hezbollah installations that have been used in the missile attacks."
My host: "That won't prevent future attacks. We're also acting pre-emptively."
"Well, in that case you're still subject to the criteria from the Caroline Case," I said, alluding to a dispute over the destruction, by British forces, of an American steamboat on the Niagara River during the 1837 Upper Canada Rebellion.
"The necessity of self-defence must be, quote `instant, overwhelming, leaving no choice of means, and no moment of deliberation.'"
I look the colonel in the eye, "I'm not sure that your air strikes fit these criteria, since you're not planning on launching them until next week. Where's the imminent threat?"
"It's an ongoing threat. We have to ensure that Hezbollah's capabilities remain at a manageable level."
"Isn't that the job of the Lebanese government?" I asked. "What you're proposing is, after all, an armed intervention within the territory of a sovereign nation-state."
"The Lebanese government can't control Hezbollah," she scoffed, "If it could, we wouldn't be having this conversation."
Although the law of self-defence sometimes permits military action against state sponsors of terrorism, this was a different argument.
"You seem to be suggesting that Lebanon, within its southern territories, amounts to a failed state."
"Precisely," she smiled. "We're not violating international law by targeting Hezbollah installations in southern Lebanon because the writ of the Lebanese government doesn't run that far."
The argument was familiar. During my years of teaching in the United States, students had sometimes argued that the UN charter's prohibition on the use of force against a country's "territorial integrity or political independence" shouldn't extend to those — such as Somalia — without effective governments.
"If that's the case," I said, "your strikes must be limited to Hezbollah targets."
"Why?" She arched an eyebrow.
"If you strike other targets, such as roads or airports, you make it more difficult for the Lebanese government to do its job. At which point your argument becomes self-fulfilling, in that you're helping to create a failed state."
The Israeli nodded, "You're right. Don't worry. We're focused on Hezbollah."
I continued: "Also, you must never target civilians, or facilities such as water-filtration or electrical plants relied upon by civilians."
"Ah, here we disagree!" the colonel exclaimed. "Collateral damage is allowed in situations of military necessity. And dual-use facilities are legitimate targets."
"What constitutes military necessity depends on the relative capabilities of the opposing forces," I countered, "And the dual-use argument is a slippery slope."
"Perhaps," she smiled again.
"There's a second reason you should do everything possible to protect civilians," I continued. "Israel has to work particularly hard to maintain the moral high ground. Your reputation has suffered because of your treatment of the Palestinians."
"We're completely justified in our treatment of the Palestinians," the colonel shot back.
"We can disagree on that," I said, "for today.
"But do me a favour, as someone who wants to sympathize with Israel. If you do launch air strikes, please limit yourself to Hezbollah facilities. Leave civilians — and the Lebanese government — alone."
Michael Byers, who holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia, revealed in Sunday's ''Toronto Star'' that while he was in Tel Aviv in 2004, he met with a lawyer who advises the Israel Defence Force about rules of engagement. Scenarios which were unfolding were discussed. 

The ''Toronto Star'' reported a conversation between Byers and an IDF colonel / lawyer during a luncheon. According to Byers, the colonel felt that attacks on southern Lebanon and civilian targets as well as Lebanese infrastructure would be justified under specific interpretations and in certain circumstances. She asked Byers for his opinion on these matters.

The lawyer Byers met with is a colonel with a Harvard doctorate. He met with her by an invitation that came while he was a visiting professor at the University of Tel Aviv. After just a few minutes, the Harvard graduated colonel got to the point of their meeting: 

"There have been a number of missile attacks along our northern border," she said. "We're going to respond with air strikes against some Hezbollah installations in southern Lebanon next week. What do you think?" 

Byers said he was taken aback as governments rarely consult foreign academics about their military plans. Though it was not clear whether the colonel was engaged in private conversation or asking for the professor's services on behalf of the military.

Byers responded; "Well, for starters, any act of self-defence has to be necessary and proportionate."

Byers advised the colonel, "Also, you must never target civilians or facilities such as water-filtration or electrical plants relied upon by civilians." 

"Ah, here we disagree!" the colonel exclaimed. "Collateral damage is allowed in situations of military necessity. And dual-use facilities are legitimate targets."

"What constitutes military necessity depends on the relative capabilities of the opposing forces," Byers responded, "And the dual-use argument is a slippery slope."

"Perhaps." the Israeli colonel said. 

"There's a second reason you should do everything possible to protect civilians," Byers advised. "Israel has to work particularly hard to maintain the moral high ground. Your reputation has suffered because of your treatment of the Palestinians."

"We're completely justified in our treatment of the Palestinians," the colonel said.

"We can disagree on that," Byers said, "but do me a favour, as someone who wants to sympathize with Israel. If you do launch air strikes, please limit yourself to Hezbollah facilities. Leave civilians — and the Lebanese government — alone."

Two years ago, Byers' IDF advisor suggested considering southern Lebanon a failed state was justification for incursions and air strikes. In contrast, speaking about the current crisis, Israel's Prime Minister Ehud Olmert said the recent cross-border attack by Hezbollah was an "act of war" committed by the government of Lebanon and that, "The events this morning are not terror attacks but actions of a sovereign state that attacked Israel for no reason. The Lebanese government, of which Hezbollah is a member, is trying to destabilize regional stability. Lebanon is responsible and it will bear responsibility."

Israel's defense ministry confirmed it held Lebanon "directly responsible" for their fate and safe return of the two soldiers captured by Hezbollah. The Israeli Defense Ministry issued a statement which said; "The Lebanese government is responsible for the fate of the Israeli soldiers, and must take immediate action to locate them without harming them and return them to Israel."