Crossing the thin blue line: an inquiry into Israel' s recourse to self-defense against Hezbollah.

Abstract

The present Article examines the legality of Israel's military intervention in Lebanon in the summer of 2006 from a jus ad bellum perspective. More specifically, it examines whether Israel could lawfully invoke the right of self-defense, taking account of the factual circumstances, the justification given by Israel and the reaction of the international community.

The Article focuses mainly on the controversy regarding the legality of self-defense against attacks by non-state actors. In this regard, it is noted that while the restrictions on this type of self-defense may have been eased in recent years, Israel's intervention should not be considered a new precedent towards a broad right of self-defense against terrorist groups or other types of non-state actors.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. THE OUTBREAK OF HOSTILITIES AND REACTION OF THE INTERNATIONAL
 COMMUNITY
   A. Israel's Self-defense Claim
      1. Ratione Materiae
      2. Ratione Personae
         i. State responsibility
         ii. Harboring, aiding, and abetting
         iii. Failure to prevent and Draft Article 9
      3. Proportionality and Necessity
III. CONCLUSION

I. INTRODUCTION

On July 12, 2006, Hezbollah militants attacked an Israeli military patrol, capturing two soldiers and killing three. Israel subsequently invoked the right of self-defense and engaged in military operations to retrieve the captured soldiers while carrying out air strikes against several targets in Lebanon, such as the Rafik Hariri International Airport in Beirut. The incident escalated in the following days, when aerial bombardments by the Israeli Defence Forces (IDF) were answered by a rainstorm of Katyusha rockets targeting Haifa and other cities in northern Israel. As the IDF crossed the Blue Line, the United Nations (U.N.)-monitored border demarcation between the two countries, Israeli troops and Hezbollah militants clashed in the worst fighting in southern Lebanon since 1982. For over a month the world held its breath until, finally, a frail ceasefire was put in place at the order of the U.N. Security Council on August 14, 2006. (1) In all, some 116 Israeli soldiers and 43 Israeli civilians lost their lives between July 12, 2006 and August 14, 2006. On the Lebanese side, some 1,109 people--mostly civilians--were killed, as well as twenty-eight Lebanese soldiers. (2) Scores of people on both sides were injured or forced to flee their homes.

The dramatic events of July and August 2006 raise important questions of jus ad bellum regarding the legality of self-defense in response to attacks by non-state actors. (3) Chief among these questions is whether state involvement in these attacks is needed to trigger Article 51 of the U.N. Charter, (4) which spells out the right of self-defense and, if so, what degree of state involvement is required. The International Court of Justice (ICJ) has addressed this question in its advisory opinion on the legality of the "Palestinian Wall" (5) and in its judgment in the Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), (6) but it has been notoriously unable to provide a coherent answer to this polemic, to the discontent of some of its judges. Legal scholars are highly divided on the topic, although a growing number of authors have suggested that the legal restrictions on self-defense ought to be eased. (7) States, on the other hand, do not seem to stumble over these thorny questions. Indeed, as they did in response to the 9/11 attacks, many states supported Israel's self-defense claim without further ado, notwithstanding the fact that many were critical of the disproportionate character of Israeli attacks and the heavy loss of civilian life on the Lebanese side.

Against this background, the present Article assesses the merits of Israel's invocation of Article 51 of the U.N. Charter. Given the fact that the initial attack emanated from Hezbollah and not from the Lebanese government, it is hard to fit Israel's recourse to force into the traditional legal parameters of self-defense. We will therefore not only examine the legality of Israel's actions but also their significance for the development of jus ad bellum, taking into account the reaction of the international community. I start from the widely accepted premise that custom, constituted of state practice and opinio iuris, is crucial for the determination of the scope of the legal prohibition on the use of force. (8) Thus, Israel's state practice in the present case will be tested against the opinio iuris expressed by Israel, Lebanon and numerous other states in the debates of the U.N. Security Council. (9) In the end, while the international community generally affirmed the applicability of the right of self-defense to Israel's actions, I argue that this should not be interpreted as creating a broad legal right to exercise self-defense against attacks by non-state actors. Rather, given the circumstances in Lebanon, Article 9 of the Draft Articles on State Responsibility (Draft Articles) (10) may provide an alternative route to legally justify Israel's recourse to self-defense under Article 51, while leaving in place the need for a certain degree of state involvement in armed attacks. The present analysis does not address the legality of Israel's actions under international humanitarian law, (11) nor does it deal with the parallel military action in the Gaza strip during the same period.

Part II summarizes the events of July 12, 2006 as well as the responses of Israel, Lebanon and the wider international community. Part III examines whether the conditions for the recourse to self-defense were met and focuses in particular on the question of whether and to what extent "armed attacks" require the involvement of a state to legally justify self-defense under Article 51 of the U.N. Charter. Part IV contains concluding remarks.

II. THE OUTBREAK OF HOSTILITIES AND REACTION OF THE INTERNATIONAL COMMUNITY

On the morning of July 12, 2006, Hezbollah fighters attacked an Israeli border patrol between the towns of Zarit and Shtula. (12) Making use of a "dead zone" in the border fence, not visible from any of the IDF outlook posts, they crossed the border and ambushed an Israeli patrol with a combination of pre-positioned explosives and anti-tank missiles. Simultaneously, Hezbollah also launched a diversionary attack, firing Katyusha rockets and mortars at Israeli military positions and border villages. The latter attack wounded five civilians. In the ambush itself, three Israeli soldiers were killed, two were wounded and two were abducted. The IDF responded with artillery fire, air strikes, and a naval bombardment. Moreover, in its first military ground operation in southern Lebanon since the withdrawal of Israeli troops in 2000, the IDF summoned a mission to rescue the captured soldiers and engaged in fierce fighting with Hezbollah gunmen.

Shortly after the Zarit-Shtula incident, Israeli Prime Minister Ehud Olmert made a statement in which he argued that the Hezbollah attack was "not a terrorist attack, but the action of a sovereign state that attacked Israel for no reason and without provocation." (13) He pointed out that Hezbollah is a member of the Lebanese government, stressing that Lebanon was responsible for this "act of war ... on the sovereign territory ... of the state of Israel" and would bear the consequences of its actions. (14) In accordance with the reporting obligation of Article 51 of the U.N. Charter, Israel submitted a letter to the Security Council, stating that "[r]esponsibility for this belligerent act lies with the Government of Lebanon, from whose territory these acts have been launched into Israel. Responsibility also lies with the Government of the Islamic Republic of Iran and the Syrian Arab Republic, which support and embrace those who carried out this attack." (15) The statement denounced the "ineptitude and inaction" of the Government of Lebanon to exercise its jurisdiction over its own territory, despite calls thereto in several Security Council resolutions. The statement goes on to reiterate that Israel "reserves the right to ... exercise its right of self-defense when an armed attack is launched against a Member of the United Nations." (16) To this end, it would take "appropriate actions to secure the release of the kidnapped soldiers and bring an end to the shelling that terrorize[d] [its] citizens." (17)

The next day, however, Lebanon called for an urgent meeting of the Security Council to discuss the crisis. (18) Lebanon declared that it was "not aware of the events that occurred and are occurring on the international Lebanese border" and did not endorse them. (19) Lebanon refuted responsibility for the actions of Hezbollah and strongly condemned "the Israeli aggressions that targeted and are targeting the vital and civil Lebanese infrastructure." (20)

Israel's actions against Lebanon were only discussed in the margin during the Security Council meeting of July 13, 2006, which instead focused on the situation in the Gaza strip at the time (a draft resolution was defeated due to a United States veto). (21) However, the next day the Council did convene to discuss the Israeli-Lebanese situation. (22) During the debate it became clear that most of the fifteen Council members supported Israel's invocation of self-defense in principle--the United States, Japan, the United Kingdom, Denmark, Slovakia, Greece, France, Peru, and Argentina all referred to Israel's right of self-defense--even though they refrained from speaking out on Lebanon's possible responsibility for the Hezbollah attacks. Only China and Qatar identified Israel's response as "armed aggression" against Lebanon. (23) On the other hand, most Council members also showed sympathy for the Lebanese authorities and stressed the need for the Lebanese government to exercise full control over all of its territory. Virtually all Council members expressed concern at the targeting of civilians and civilian infrastructure in Lebanon and called for restraint, with several countries, such as Russia and France, expressly condemning the disproportionate nature of Israel's campaign. (24)

In the following days, Israel's claim continued to receive implicit and explicit support from several corners, although often in combination with deep concern at the loss of civilian life. Thus, on July 16, 2006, the Group of Eight (G8), meeting in St. Petersburg, issued a declaration acknowledging Israel's right to self-defense while calling for restraint. (25) Two days later, the U.S. Senate adopted a resolution "[c]ondemning Hezbollah and Hamas and their state sponsors and supporting Israel's exercise of its right to self-defense." (26) Likewise, Australian Prime Minister John Howard affirmed that Hezbollah had forced Israel into self-defense. (27) Even U.N. Secretary-General Annan, albeit highly critical of Israel's excessive and disproportionate use of force, acknowledged Israel's right to defend itself under Article 51 of the U.N. Charter. (28)

The open debate in the Security Council of July 21, 2006 shows a similar picture. Notwithstanding deep concern or outright condemnation of the disproportionate use of force, a majority of participants agreed as a matter of principle that Israel had the right to defend itself against the attacks by Hezbollah. (29) This position was held by the United States, the twenty-five member states of the European Union, Japan, Russia, Canada, Australia, Norway, Switzerland, Brazil, Argentina, Peru, Guatemala, and Ghana. On the other hand, the twenty-two member League of Arab States (30) condemned the Israeli aggression, as did China, Iran, Cuba, and Venezuela. Other countries, such as India and Indonesia, condemned the disproportionate character of Israel's action, without addressing the self-defense question. (31)

Thus, it appears the international community steadily grew more critical of Israel's use of force against Lebanon, especially after the killing of four U.N. peacekeepers in an Israeli artillery and aerial attack on July 25, 2006 (32) and the Qana massacre (33) of July 30, 2006 in which twenty-eight Lebanese civilians lost their lives. Still, a majority of states, including eleven out of fifteen Security Council members, backed the invocation of Article 51 of the U.N. Charter. (34) Let us now turn to the merits of the casus belli.

A. Israel's Self-defense Claim

An examination of Israel's self-defense claim can be broken down in three parts. First, we must establish whether the Zarit-Shtula incident qualifies as an "armed attack" in the sense of the U.N. Charter's Article 51 ratione materiae. This means that we must assess whether Hezbollah's acts were "of such gravity" that they would qualify as an armed attack if they had been carried out by regular armed forces. Second--and this is the most difficult point to tackle from a legal perspective--we must look into the Lebanese government's involvement in the activities of Hezbollah to verify whether the incident qualifies as an armed attack ratione personae. A third and final aspect concerns the necessity and proportionality of Israel's response.

A preliminary remark must be made. Several officials and media sources have questioned Israel's motives in going to war against Lebanon. Some have suggested that Israel had long pre-planned its military campaign and was waiting to be provoked; others have pointed out that Israel pursued wider goals than merely the return of its abducted soldiers. (35) Whether or not these suggestions are true is irrelevant from a jus ad bellum perspective. This follows from the Nicaragua case, where Nicaragua argued that the U.S. justification of self-defense merely served as a pretext for its contested activities. The Court rejected this argument, declaring that self-defense can be legally invoked if the appropriate conditions are met "even though there may be possibility of an additional motive, one perhaps even more decisive." (36) Hence the answer: yes, self-defense may be a pretext, as long as the basic conditions are met. But were these conditions met on July 12, 2006?

1. Ratione Materiae

Our first question concerns whether the "scale and effects" of the initial attack by Hezbollah were sufficient to trigger the right of self-defense. In the Nicaragua case, the ICJ famously distinguished between the "most grave" forms of the use of force from other "less grave" forms. (37) Only the former qualify as "armed attacks" in the sense of Article 51. This is also evident from the ICJ's reference to the Definition of Aggression, (38) adopted by the U.N. General Assembly in 1974, which the Court used as a yardstick to determine the existence of an armed attack. (39) Articles 2 and 3(g) of the Definition require that armed force be of sufficient gravity to constitute aggression. (40) As a result, a de minimis threshold has to be reached. An armed attack must involve at least a use of force producing (or liable to produce) serious consequences, epitomized by territorial intrusions, human casualties or considerable destruction of property. (41) Use of force below this threshold may well trigger a state's right to take countermeasures, but it does not justify recourse to self-defense. On the other hand, a single incident such as the mining of a single vessel may be sufficient to bring into play the inherent right of self-defense. (42) Single incidents may also be "accumulated" so as to determine whether the threshold has been reached. (43)

In Nicaragua, the ICJ excluded "mere frontier incidents" from the concept of "armed attack." (44) Many scholars criticized this distinction as artificial, arguing that some "frontier incidents" may be trivial, while others may be extremely grave. (45) However, the concept of frontier incidents may be useful to avoid escalation of minor incidents. It does not a priori rule out the possibility that trans-border incursions could singly or collectively amount to armed attacks. The ICJ did not provide much guidance to distinguish mere frontier incidents from armed attacks, but only referred in general terms to "scale and effects" and circumstances and motivations. (46) The implication seems to be, as Gray notes, that "the Court would include within 'frontier incident' episodes where there was no intent to carry out an armed attack, including accidental incursions and incidents where officials disobeyed orders." (47)

Given this understanding, the premeditated and well-organized character of the Hezbollah ambush, the ongoing nature of the abduction, combined with diversionary rocket attacks suggest that this was a deliberate "armed attack" rather than a mere "incident." Considering the serious consequences of the attack--which included territorial intrusions, human casualties, and destruction of property--one could argue that, even though it was a relatively small-scale event, the ratione materiae criterion was fulfilled. The outcome of this analysis would be different if one were to follow the alternate version of the incident, proclaimed by the Lebanese police and later by Hezbollah. According to this version, the Israeli soldiers were captured when Hezbollah attacked an Israeli commando force trying to infiltrate the village of Ayta ash-Shab, well inside Lebanese territory. (48) This account seems somewhat at odds with the apparently premeditated nature of Hezbollah's attack. (49) All major news agencies, including A1 Jazeera, as well as the European Union and the G8, have characterized the abduction as a "cross-border" attack. Likewise, the report of the United Nations Interim Force in Lebanon (UNIFIL) states that Hezbollah "crossed the Blue Line into Israel and attacked an IDF patrol," (50) and Security Council Resolution 1701 speaks of "Hezbollah's attack on Israel." (51) Therefore, we see that the answer to the question posed at the start of this section is that the attack by Hezbollah was sufficient to trigger the fight to self-defense.

2. Ratione Personae

The ratione personae aspect is more difficult to assess. The problem is that considerable controversy exists as to when attacks carried out by non-state actors qualify as "armed attacks" in the sense of Article 5 1. The text of the Article does not explicitly restrict the scope of "armed attacks" to acts of state agents, yet it has traditionally been interpreted in this way. (52) Thus, the U.S. Senate Foreign Relations Committee long ago declared that "the words 'armed attack' clearly do not mean an incident created by an irresponsible group of individuals, but rather an attack by one state upon another." (53) On the other hand, literature also suggests that self-defense can be exercised against attacks by non-state actors when there is a certain degree of state involvement in the attacks, a situation which is sometimes labeled "indirect military aggression." (54)

In addressing this controversy, the International Court of Justice has applied the reasoning of Article 3(g) of the Definition of Aggression, which was taken to reflect customary international law. Thus, the Court extended the notion of "armed attack" to "the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein." (55)

Nevertheless, the application and interpretation of this phrase has become increasingly contested. This is a consequence of evolutions in state practice, recent resolutions adopted by the Security Council, and, last but not least, subsequent ICJ jurisprudence. As a result, there are currently three broad lines of reasoning. (56) On the one hand, some argue that self-defense can only be exercised when attacks by non-state actors can be imputed to a State in accordance with established rules on state responsibility. On the other extreme, some argue that state involvement has become irrelevant and that one should only look at the gravity of the attack to determine the appropriateness of self-defense. In between, a third position claims that state involvement remains a precondition albeit under a lower threshold than that of state responsibility. Hereafter, we will examine these positions in the context of the Israeli-Lebanese conflict. It is argued that Israel's actions fail to meet the ratione personae threshold, not only if one sticks to the general rules on state responsibility, but also when a somewhat lower state involvement standard is adopted. Subsequently, an alternative route is suggested to act against states failing to prevent cross-border attacks by non-state actors by falling back on a somewhat neglected rule of state responsibility, dealing with conduct carried out in the absence or default of official authorities.

i. State responsibility

As mentioned above, the ICJ in the Nicaragua case used Article 3(g) of the Definition of Aggression as a yardstick for the legality of self-defense against attacks by non-state actors. This article refers to the "sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State ... or its substantial involvement therein." (57) Although the wording "sending by or on behalf of" seems to imply agency, the additional reference to "substantial involvement therein" suggests that this yardstick--which the Court held to be part of the primary rules of the jus ad helium--is not necessarily identical to the secondary rules concerning state responsibility, but may actually be broader. Indeed, the phrase "substantial involvement" was the result of long debates regarding the degree of state involvement needed to establish "aggression." (58) Some delegations wanted to include "support," "acquiescence," and "encouragement of organization" of armed bands. Others wanted to reserve "aggression" to cases of "open and active participation." (59) The implication of the Court's reference to Article 3(g) therefore seems to be that self-defense may go beyond situations where attacks by non-state actors are imputable to a state and also covers situations where a state is "substantially involved" in their activities. At the same time, however, the ICJ took a narrow view of such involvement and discarded the idea that "the provision of weapons or logistical or other support" could amount to an armed attack. (60) Although the giving of sanctuary to non-state actors did not arise on the facts in Nicaragua, it is assumed that the Court implicitly rejected that acquiescence or the inability to control armed bands operating on a state's territory could constitute an armed attack. (61) In the end, the Court's narrow interpretation seemed to de facto limit self-defense to attacks that are actually attributable to states. This position was heavily attacked by Judge Schwebel and Judge Jennings as well as by several scholars. Judge Jennings, for example, pointed out that, "it becomes difficult to understand what it is, short of direct attack by a state's own forces, that may not be done apparently without a lawful response in the form of ... self-defence." (62)

If ever there was a gap between the Court's interpretation of Article 3(g) of the Definition of Aggression and the rules on state responsibility, it seems to have been closed in two recent ICJ cases. Thus, in the Palestinian Wall advisory opinion, the Court stated that Article 51 U.N. Charter recognized, "the existence of an inherent right of self-defense in the case of armed attack by one State against another State." (63) Since Israel had not claimed that the attacks it suffered were in fact "imputable to a foreign state," the right of self-defense could not be invoked to justify the building of the "Palestinian Wall." (64) And in DRC v. Uganda, the Court invoked the wording of Article 3(g) Definition of Aggression, albeit dropping the reference to "substantial involvement." (65) The Court seemed to follow the view that the deplorable attacks against Uganda by armed groups acting from Congolese territory were due to the Democratic Republic of the Congo's (DRC) inability to control events along its border and concluded that the attacks were "not attributable" to the DRC. Given the absence of state responsibility, the preconditions for the exercise of self-defense were deemed absent, meaning that the Court "did not need to enquire" whether Uganda's actions had abided by the standards of proportionality and necessity.

Given the jurisprudence of the ICJ, it is little wonder that Israel traveled the road least contested and invoked state responsibility. Indeed, while reporting to the Security Council, Israel took the position that Lebanon was responsible for Hezbollah's attack and that, as a result, this was not a terrorist attack, but rather the action of a sovereign state. (66) If this were true, then there would be no doubt that Israel could lawfully invoke Article 51 of the U.N. Charter. However, one would first need to demonstrate that Hezbollah's actions could be attributed to the Lebanese government in accordance with the stringent rules on state responsibility, enshrined in the International Law Commission's authoritative Draft Articles on State Responsibility. (67)

In principle, Draft Article 4 limits state responsibility to acts carried out by state organs exercising legislative, executive, judicial or other functions, as long as they are acting in their official capacity. (68) Draft Article 7 makes clear that this also covers occasions where agents exceed their authority or contravene their instructions. In this context, Israel emphasized the fact that Hezbollah is part of the Lebanese government. (69) Hezbollah has indeed participated as a political party in Lebanese elections since 1992 and at the time of the crisis it held fourteen seats in the 128-member Parliament. It was, moreover, a minority partner in the Cabinet, where it held two minister posts (Energy and Water, and Labour). It had also endorsed a third Cabinet position, namely that of Fawzi Salloukh, minister for Foreign Affairs. Nevertheless, to conclude from this participation that the July 12 attack was carried out by state agents is not acceptable. The mere fact that Hezbollah held two minister posts obviously does not imply that all Hezbollah militants would become state agents. This might be different if Hezbollah were leading the government, as Hamas did at the time in the Occupied Palestinian Territories. In such a situation, one could argue that the military wing of Hezbollah would become an extension of the government's security apparatus, implying that its actions would be imputable in the sense of Draft Article 4. Yet, in the present context, Draft Article 4 does not apply.

This means that we have to look at the exceptions to the rule that states are only responsible for acts of their organs. Three main exceptions exist. The first two are laid down in Draft Article 8, according to which the conduct of a person or a group of persons shall be considered an act of a state if the person or group of persons is in fact acting on the specific instructions of the state or is under the direction or control of the state in carrying out the conduct. (70) With regard to the latter exception, the ICJ suggested that the litmus test is the existence of "effective" control or direction. (71) The third exception deals with situations where a state explicitly acknowledges and adopts conduct by non-state actors as its own (Draft Article 11; both requirements have to be fulfilled cumulatively). This situation surfaced in the Tehran case where the ICJ held that the Iranian policy of placing pressure upon the United States by not ending the hostage-crisis in the U.S. embassy and various Iranian authorities' compliance with this policy transformed the occupation of the U.S. embassy into acts of Iran. (72)

None of these exceptions apply in the present situation. As the Secretary-General remarked, it was clear that the Lebanese government had no advanced knowledge of the attack. (73) The Lebanese government immediately distanced itself from Hezbollah's attack and informed the Security Council that it was not aware of the events and did not endorse them. (74) Moreover, whereas Israel accused Iran and Syria of "supporting and embracing" those who carried out the attack, it did not accuse Lebanon of supporting Hezbollah, let alone of "effectively controlling" Hezbollah. Instead, Israel merely spoke of Lebanon's "ineptitude and inaction" in exercising jurisdiction over its own territory, blaming the government for not implementing Security Council Resolution 1559. (75) The latter resolution had called for the withdrawal of all foreign forces from Lebanon as well as the disbanding and disarmament of all Lebanese and non-Lebanese militias. (76) It had partially been implemented as a result of the withdrawal of most Syrian forces from Lebanese territory. (77) However, the Lebanese government had failed to dismantle Hezbollah, thus allowing the country to become a "hotbed of violence and a cesspool of terrorism." (78) Israel argued that it was compelled to act "not against Lebanon, but against the monster that Lebanon had allowed to hold it hostage." (79) Like virtually all U.N. Members during the Security Council debates of July 14 and 31, Israel supported the position that the Lebanese government should extend its sovereign jurisdiction over the whole of its territory, a position that formed the basis for Resolution 1701. (80) In other words, the Lebanese government was not seen as the problem, but as part of the solution.

Now that we have established that the July 12 attack was not imputable to the Lebanese government in the sense of Draft Articles 4, 8 or 11, does this mean that self-defense was excluded in the present context? If one adheres to the proposition that the exercise of self-defense against attacks by non-state actors requires state responsibility, the answer would at first sight be affirmative. However, the latter position is increasingly criticized for rendering self-defense against attacks by non-state actors virtually always impossible. (81) First, it is highly unlikely that a state would explicitly acknowledge an attack and adopt it as its own in the sense of Draft Article 11, knowing that doing so would make it the possible target of a counterattack. Second, in most situations of alleged "indirect military aggression," states are involved by indirectly providing assistance, training, financial and logistical support, rather than by giving specific instructions or exercising effective control over attacks. In such circumstances, a state sponsor commits an internationally wrongful act. For example, the Declaration on Friendly Relations proclaims that "no state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interfere in civil strife in another state." (82) Nonetheless, the state victim of an attack by non-state actors would only be allowed to resort to peaceful countermeasures. The state supporting the attack would effectively be shielded from the use of military force.

In an age where terrorism is universally recognized as one of the most serious threats to international peace and security, (83) a strict insistence on the need for state responsibility seems untenable. Such a position has also been challenged by several judges of the ICJ. In relation to the Palestinian Wall advisory opinion, for example, Judge Kooijmans, Judge Buergenthal, and Judge Higgins all emphasized that nothing in the text of Article 51 stipulates that self-defense is available only when an armed attack is made by a state. (84) Both Judge Kooijmans and Judge Buergenthal suggested that Security Council Resolutions 1368 and 1373 marked a new approach to self-defense, regretting that the Court had by-passed these new elements. (85) Judge Higgins has written separately to reiterate her earlier criticism of the Court's reliance on the Definition of Aggression in the context of the Nicaragua case. (86)

Criticism had grown stronger by the time of the DRC v. Uganda case, where the role of irregular forces was at the heart of the dispute. Several judges regretted that the Court had not taken the opportunity "to clarify the state of the law on a highly controversial matter, marked by great controversy and confusion---not the least because it was the Court itself that ha[d] substantially contributed to this confusion by its Nicaragua judgment.... (87) Judge Kooijmans and Judge Simma were mainly concerned with a phenomenon "which in present-day international relations has unfortunately become as familiar as terrorism," namely the almost complete absence of government authority in the whole or part of the territory of a state. (88) Both suggested that in such circumstances one should only look at the scale and effects of an attack to determine the applicability of Article 51. Judge Koroma, on the other hand, argued that a state's "massive support for armed groups, including deliberately allowing them access to its territory" could be characterized as an "armed attack." (89) Finally, Judge ad hoc Kateka rejected the idea that "the provision of arms, coupled with 'logistical and other support'" could not qualify as an armed attack. (90)

These separate and dissenting opinions acquire a particular meaning if we look at recent evolutions in state practice and opinio iuris. Here we notice a trend of abandoning the need for state imputability in two different scenarios, namely cases where a state supports the activities of non-state actors and cases where a state is unable to prevent non-state actors from carrying out attacks.

ii. Harboring, aiding, and abetting

Throughout the Cold War era, a number of states--mainly South Africa, Israel, Portugal, and the United States--occasionally invoked active or passive state support to justify the exercise of self-defense against cross-border incursions by rebel groups or terrorist attacks. On most occasions, a broad majority of states rejected these justifications (albeit for various reasons). The Security Council and the General Assembly frequently condemned these incursions. (91)

More recently, the number of states invoking active or passive state support has grown considerably. (92) In doing so, they have frequently escaped condemnation by the Security Council and have even received occasional support from other states. In 1996, for example, Sudan complained of armed aggression, because Eritrea was sponsoring and hosting elements of the rebel movement in southern Sudan (SPLM). (93) One year later, Burundi attempted to justify territorial incursions into Tanzania on the ground that Tanzania provided Burundian exiles with military training and weapons. (94) Among the numerous other examples (95) one can single out are the 1998 missile attacks by the United States on a terrorist training camp in Afghanistan and a pharmaceutical plant in Sudan. (96) These strikes constituted a response to the terrorist bombings of the U.S. embassies in Nairobi and Dares Salaam two weeks earlier and were justified on the basis that Afghanistan and Sudan had continuously provided a safe haven to terrorist groups, despite warnings to stop harboring terrorists. The strikes were condemned by the League of Arab States as well as by Russia and Pakistan. Several other states--such as Australia, France, Germany, Spain, and the UK--nevertheless showed support or at least understanding for the U.S. response.

Yet the true turning point was the Al Qaeda attacks of September 11, 2001 (9/11). The day after the attacks, the Security Council in Resolution 1368 explicitly recognized the inherent right of individual or collective self-defense, (97) a reference which was repeated in Resolution 1373. (98) In a similar vein, both the OAS and NATO invoked the right of collective self-defense. Invoking the famous Article 5 of the Washington Treaty for the first time in its history, the North Atlantic Treaty Council moreover specifically stated that the attack against the United States was "directed from abroad" (emphasis added) and would therefore be regarded as an action covered by the aforementioned article. The vast majority of U.N. Members, including China and Russia, supported the United States' subsequent resort to self-defense against Al Qaeda and the Taliban. (99) Only Iran and Iraq challenged the legality of the operation. (100)

In Resolutions 1368 and 1373, the Security Council for the first time recognized the right to use force in self-defense against attacks by non-state actors. (101) Without going into the controversy concerning the legislative competence of the Security Council, (102) these resolutions are often seen as a new departure for customary international law on the use of force. What this new departure implies is not altogether clear from the resolutions. The reference to the inherent right of individual or collective self-defense in the preamble of the two resolutions remains vague and ambiguous. (103) The Security Council debate preceding their adoption does not provide any clarification either; nor does the ICJ's advisory opinion on the Palestinian Wall. In that case, the Court merely referred to the two resolutions (thereby suggesting that they do have a certain impact on international law), while stating that they dealt with situations of international terrorism and were, therefore, inapplicable with regard to the situation in the Occupied Palestinian Territories. (104)

Some authors have interpreted the two resolutions as allowing for the resort to self-defense against all attacks by non-state actors, regardless of the presence of any state involvement. (105) Such interpretation could lead to manifestly absurd results, as states would become exposed to military force without having committed a wrongful international act themselves. Consider for example the fact that the entire network of terrorist cells making up the organization that organized the 9/11 attacks sprawls across as many as sixty different countries. (106) Could all these countries become the target of armed action? Would Spain have the right to use force against E.T.A. militants in the south of France? And what about militants of the Kurdish DHKP/C--another organization on the EU list of terrorist groups--operating from Brussels? Here the answer must be that self-defense is not an option, even when national security services are unsuccessful in tracking and rounding up these groups. This is not only the case because legal literature traditionally confirms the need for state involvement in attacks by non-state actors, but mostly because state practice has consistently upheld the need for a certain link with a state. Thus, in justifying its action against Afghanistan in 2001, the United States emphasized that the 9/11 attacks had "been made possible by the decision of the Taliban regime to allow parts of Afghanistan that it controls to be used by (al Qaeda) as a base of operation." (107) The United States also referred to the Taliban's refusal to extradite Osama bin Laden as requested.

The best solution seems to be to fall back on the Definition of Aggression's reference to "substantial involvement" in the activities of non-state actors, while giving this threshold a broader interpretation than did the ICJ in the Nicaragua case--in other words by detaching it again from the secondary rules on state responsibility. A strict adherence to the need for state imputability can no longer be said to accurately reflect the existing state of the law. (108) Many authors have accepted that the right of self-defense now includes military responses against bases of non-state actors located in another state, from which an attack has been launched or directed, provided that the latter state willingly harbored the non-state group. (109) This was the situation envisaged in the aftermath of 9/11.

Whether other forms of aiding and abetting (apart from the willing harboring of groups carrying out attacks), such as the provision of weapons, training, intelligence information, etc., are sufficient to trigger the right of self-defense is not clear from state practice and remains contested in legal literature. On the one hand, the international community cannot tolerate the sponsoring of terrorist groups by states. On the other hand, certain restraints are needed, both in order to protect the interests of states that have not committed internationally wrongful acts and to avoid escalating violence. (110) Furthermore, it must be stressed that the fight against terrorism is and remains a matter of law enforcement that should be dealt with through cooperation between states.

In any event, the mere presence of non-state actors in a state's territory is not sufficient to qualify as "willingly harboring." (111) The latter concept requires a subjective element, in the sense that the state from whose territory the non-state actors operate must actually approve of the cross-border attacks carried out by these actors. This is not easy to assess. It ultimately boils down to a factual and contextual assessment. Statements by officials may provide a lead. Moreover, the subjective element may also be derived from the material support provided by the state to the non-state actor. Thus, the aforementioned examples, including the provision of weapons or training, may assist in identifying cases of "willingly harboring" non-state actors.

If we turn back to Israel's resort to self-defense against Hezbollah, we must make a distinction between the respective roles of Lebanon on the one hand and Iran and Syria on the other hand. Whereas Israel accused Lebanon of "ineptitude and inaction" in exercising its jurisdiction over its own territory, it accused Iran and Syria--which it labeled "the Axis of Terror and Hate" (112)--of actually supporting and embracing those who carried out the attack. (113) In another statement, the Israeli deputy foreign minister claimed that Syria provided support to Hezbollah, including the transfer of arms, munitions, and operatives through the Damascus airport and border crossings into Lebanon. (114) He further argued that Iran, as the main benefactor of Hezbollah, provided the organization with funding, weapons, and directives. (115)

Although the existence of concrete support to Hezbollah remains largely a matter of speculation, various sources indicate that both countries supplied Hezbollah with rockets and other weaponry, that Syria provided a safe harbor for Hezbollah militants in Syrian-controlled territory, and that Iran was the largest financier of Hezbollah and provided military training (through its Revolutionary Guard) as well as ideological guidance. (116) As one author notes, Hezbollah has proven an invaluable tool for Syria and Iran to pressure Israel while avoiding direct involvement in international terrorism. (117) The same author contends that:

   [A]lthough Hezbollah exercises considerable independence, it has
   consistently demonstrated that it will bend to Syria's will.
   Damascus can prompt violence by militants ... and can get those
   same militants to lie low when it wants to avoid confrontation....
   When Tehran and Damascus feel threatened by the possibility of
   retaliation, they do not hesitate to rein Hezbollah in. (118)

With regard to Lebanon, on the other hand, the situation is entirely different. As mentioned before, the Lebanese government condemned the attack of July 12, 2006. (119) Lebanon was, moreover, not perceived as a sponsor of Hezbollah. It did not, for example, appear on the U.S. list of "state sponsors of terror." (120) Nor did Israel accuse the Lebanese government of providing training or weapons to Hezbollah. It merely accused it of being unable to dismantle Hezbollah as was called for in Security Council Resolution 1559. Lebanon's failure to satisfy this demand, of course, was not surprising, considering that one of the weakest armies in the Middle East faced the most capable non-state armed group in the region (one that even the unparalleled IDF ultimately failed to defeat). (121) In this regard, one should take account of the difference between the situation in Afghanistan in 2001 and Israel's action against Lebanon. In the former case, the United States argued that the Taliban regime had deliberately allowed parts of Afghanistan that it controlled to be used by al Qaeda as a base of operation. (122) Moreover, as the 9/11 Commission report illustrates, close ties existed between al Qaeda and the Taliban in the form of training, infrastructure, and other support. (123) By contrast, Lebanon had been unable to exercise its jurisdiction over all of its territory. Whereas the Taliban regime was seen as part of the problem, the Lebanese government was seen as part of the solution. The implication is that Lebanon did not "willingly harbor" Hezbollah and was apparently not "substantially involved" in its activities. Thus, neither the general rules on state responsibility nor the lower state involvement threshold seem to provide a justification for Israel's conduct. This leaves open one last option, namely the "failed state" scenario.

iii. Failure to prevent and Draft Article 9

The Declaration on Friendly Relations, (124) adopted by consensus by the General Assembly in 1970, prohibits states not only from organizing or assisting subversive, terrorist, or armed activities directed against other states, but also from tolerating such activities. As recognized in the Corfu Channel (125) and the Tehran cases, (126) inter alia, this entails a duty to apply due diligence in preventing harm to other states stemming from actions within a state's own territory. Absolute prevention is not required. The duty to prevent attacks by non-state actors is an obligation of means, not an obligation of results. (127) States that fail to act with due diligence--as Lebanon arguably did by not acting against Hezbollah's build-up of its military capabilities after the Israeli withdrawal in 2000--commit internationally wrongful conduct and become liable to peaceful countermeasures. They do not, however, automatically become exposed to the use of force in self-defense. (128)

Recourse to self-defense on the simple grounds that a state is incapable of preventing attacks by non-state actors has been very rare throughout the U.N. era. (129) For the first forty Charter years, Israel was virtually the only country to invoke the failure of a state to prevent attacks by non-state actors as a justification for self-defense. Israel's incursions were mostly condemned by the Security Council. Only on rare occasions did Israel escape condemnation as a result of a United States veto.

More recently, however, there have been other examples where countries have invoked states' incapability to prevent attacks by non-state actors operating within their territory to justify recourse to force against those states' territory. This seems to have been the case with regard to Turkish and Iranian violations of Iraqi territory during the 1990s in response to guerrilla attacks by the Kurdish Workers' Party (PKK). (130) In a similar vein, Rwanda in December 2004 invoked the DRC's failure to prevent attacks by Hutu rebel groups as a ground for military operations in Eastern Congo. (131) Finally, Russia invoked the inability of Georgia to prevent attacks by Chechen forces operating from the Pankisi Gorge area to justify bombardments against Chechen positions in Georgia. (132) Several scholars, including Judge Simma and Judge Kooijmans, have shown sympathy for the view that states can lawfully resort to self-defense in response to attacks emanating from failed states. (133) Otherwise, they argue, failed states would turn out to be safe havens for terrorists, which is obviously not what articles 2(4) and 51 of the U.N. Charter aim at condoning.

On the other hand--leaving aside the difficulty of identifying a country as a "failed state"--state failure should not simply be equated to a loss of sovereignty. As a matter of principle, failed and failing states are still sovereign states, protected by the principle of non-intervention (notice for example how the Security Council has time and again stressed the sovereignty and territorial integrity of such countries (134)). Tackling the activities of private bands operating in such states must primarily be dealt with as a matter of law enforcement, by means of cooperation between states. (135) Furthermore, an analysis of recent state practice does not lend much conclusive support to the view that customary international law has come to accept self-defense against failed or failing states. Indeed, in 1995 a Turkish offensive against Kurdish groups in northern Iraq was condemned by the Arab League, the Gulf Cooperation Council, and the Non-Aligned Movement. (136) European states similarly asked Turkey to withdraw its troops without delay. Only the United States supported Turkey's right to defend itself, although it later joined calls for withdrawal. In a similar vein, the Security Council showed some sympathy for Rwanda's security concerns with regard to militias in eastern Congo, yet at the same time called on Rwanda to withdraw any forces it might have in Congolese territory. (137) The Council thereby condemned all incursions into the DRC, albeit without formally condemning Rwanda ad nominatim. Likewise, with regard to Georgia, the United States deplored the Russian violations of Georgian sovereignty and spoke of bombings "under the guise of antiterrorist operations," even though it acknowledged that Georgia had not been able to establish effective control over the eastern part of the country. (138) Interestingly, the United States and the United Kingdom provided Georgia with training and other assistance to help the authorities to implement tighter anti-terrorism controls. (139) Finally, one should not ignore the fact that in DRC v. Uganda, the Court was confronted with a "failure to prevent" situation, yet rejected the possibility of invoking self-defense and stuck to the language of state imputability. (140)

In the end, it seems that there has not been a single case in state practice throughout the Charter era where a majority of states has explicitly supported the invocation of self-defense against a state failing to prevent attacks by non-state actors (rather than willingly harboring them). The attentive reader might object that the Zarit-Shtula incident presents exactly this. This observation is indeed correct. At the same time, the situation in southern Lebanon seems a bit of an odd case. It differs from the aforementioned examples, such as the DRC and Georgia, in the sense that Hezbollah is often considered to be "a state within the state." This potentially brings the situation within the ambit of Draft Article 9, which deals with "conduct carried out in the absence or default of the official authorities." Draft Article 9 is a somewhat neglected rule of state responsibility, specifically addressed to situations where the state apparatus has totally or partially collapsed (which is why it was not dealt with earlier together with the general rules on state responsibility). (141) The article reads as follows:

   The conduct of a person or group of persons shall be considered an
   act of a State under international law if the person or group of
   persons is in fact exercising 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. (142)

According to the ILC Commentary, this provision presupposes that a partial or total collapse of the regular government has occurred, which led to individuals performing conduct which would normally be exercised by governmental authorities. (143) The situation envisaged here is not equivalent to that of a general de facto government (which is covered by Draft Article 4 rather than Draft Article 9). (144) Rather, it presupposes the existence of a government in office and of, "[s]tate machinery whose place is taken by irregulars or whose action is supplemented in certain cases." (145) This may happen on part of the territory of a state which is for the time being out of control, or in other specific circumstances.

While much, unfortunately, remains unclear with regard to the principles governing this type of situation, (146) a case can nevertheless be made that the principle of Draft Article 9 is applicable in the Lebanese context. On the one hand, it seems fair to state that Hezbollah did not qualify as a de facto government (as for example Somaliland or Transdniestre might), and that there was no complete absence of official Lebanese authority in certain parts of the country. Lebanese police and military forces were present in southern Lebanon, even though they arguably kept a low profile. Official authorities were moreover responsible for the collection of taxes and the organization of immigration, customs and the judiciary throughout the Lebanese territory.

On the other hand, a number of factors suggest a "default of official authority." Indeed, the lack of governmental jurisdiction over large parts of its territory was exactly what Israel reproached Lebanon about and what the international community aimed at restoring. Evidence suggests that in those areas with a large Shiite majority--namely the south of Lebanon, the Beqaa valley in the northeastern part of the country, as well as several poor Shiite suburbs of Beirut--Hezbollah exercised a range of functions traditionally exercised by the government. Consider for example the following passage from the UNIFIL report on the situation in southern Lebanon during the period preceding the Zarit-Shtula incident:

   The Lebanese Government's authority and security control remained
   limited, especially in the areas close to the Blue Line. The
   Lebanese Army maintained a presence in some of the areas vacated by
   Israel in May 2000, but at a distance from the Blue Line....
   Control of the Blue Line and its vicinity appears to have remained
   for the most part with Hizbollah. During the reporting period,
   Hizbollah maintained and reinforced a visible presence in the area,
   with permanent observation posts, temporary checkpoints and
   patrols. It continued to carry out intensive construction works to
   strengthen and expand some of its fixed positions, install
   additional technical equipment, such as cameras, establish new
   positions close to the Blue Line and build new access roads. These
   measures resulted in a more strategically laid out and fortified
   structure of Hizbollah's deployment along the Blue Line." (147)

This passage illustrates that Hezbollah, which was widely considered to be the most capable non-state armed group in the Middle East, was in fact policing parts of Lebanese territory.

Apart from a military and security organization, Hezbollah also acted as a social and political organization. In marked contrast to the Lebanese government, it offered relatively efficient public services and ran effective schools and hospitals across half the country. (148) In the Shiite areas mentioned above--sometimes dubbed "Hezbollahland"--Hezbollah "exercises almost exclusive control and maintains a dense social network that provides food, medicine, education, and basic services." (149) According to a March 2006 news report by the United Nations Office for the Coordination for Humanitarian Affairs (UNOCHA), "Hezbollah was operating at least four hospitals, 12 clinics, 12 schools, and two agricultural centers, where it provides farmers with technical assistance and training." (150) It also had an environmental department and an extensive social assistance program, as well as pharmacies, mosques, and NGOs supporting women. (151) These social and health programs were believed to be worth hundreds of millions of dollars annually. Hezbollah furthermore operated a satellite television station, "Al-Manar," as well as a radio station, "Al Nour." In many ways, "Hezbollah [was doing] everything a government should do, from collecting the garbage, to running hospitals and repairing schools." (152) The Lebanese government acknowledged on numerous occasions that it was committed to fulfilling its duty to exercise authority over its entire territory and be the sole provider of security to all its citizens and residents. However, at the time of the events discussed, the government certainly did not claim that it was successfully fulfilling this duty.

Admittedly, most of the functions listed above are not necessarily exercised by governments (e.g., education or health care). They moreover differ from the few examples that are available in relation to Draft Article 9, such as the management of immigration and customs services (153) or tribunals. (154) The situation in "Hezbollahland" was perhaps not the most "orthodox" application of Draft Article 9. Still, if we look at the whole context, the preponderant role of Hezbollah as a social and military security provider, and the near absence of the official Lebanese authorities, one might say that Hezbollah exercised, "elements of the governmental authority in the default of the official authorities" in the sense of Draft Article 9. This means that the first two preconditions enshrined in Draft Article 9--the absence or default of the official authorities and the exercise of elements of governmental authority by a person or group of persons--would be fulfilled. This leaves open a third precondition, viz. the presence of "circumstances such as to call for the exercise of those elements of [governmental] authority." This is arguably the vaguest of the three criteria. According to the ILC Commentary, it conveys the idea that some exercise of governmental functions was called for, though not necessarily the conduct in question. (155) In this regard, one may point to the fact that the contested conduct involved the use of military force, a function which normally falls under the scope of governmental authority. Moreover, in casu, the Security Council had explicitly called upon the Lebanese government to exercise its governmental functions throughout the south. (156) It thus seems fair to conclude that the July 12 attack could be attributed to Lebanon on the basis of Draft Article 9 and that, from a legal point of view, the attack constituted an armed attack by a state, triggering Israel's right to self-defense. The provisional finding is that Hezbollah's actions could be considered an "armed attack," both from a ratione materiae and a ratione personae perspective. As a result, Israel could lawfully appeal to the right of self-defense.

3. Proportionality and Necessity

Assuming that Israel could invoke the right of self-defense, we must now consider whether Israel's response abided by the customary standards of necessity and proportionality. (157) These standards stress that self-defense is restricted to the repulse of an armed attack and may never involve punitive actions, thus distinguishing lawful recourse to self-defense from unlawful armed reprisals. (158) Necessity entails that no alternative means of redress may be available and that the time lapse between the initial attack and the recourse to self-defense is reasonably short (taking account of the need to make preparations or carry out investigations). Proportionality, on the other hand, means that the force used in self-defense should generally be proportionate to the gravity of the initial attack. Contrary to the proportionality standard applicable in international humanitarian law, one must look at the force used in self-defense as a whole, rather than assessing each incident or attack individually. Both criteria are interpreted in a flexible manner. Thus, the amount of force used in self-defense does not need to be exactly the same as in the initial attack. Nor does proportionality require parity in casualty rates.

Following the Hezbollah attack and the abduction of the two Israeli soldiers on July 12, Israel immediately responded with artillery fire, air strikes, and a naval bombardment, focused on several Hezbollah strongholds in southern Lebanon. (159) Israel also targeted roads and bridges in an attempt to keep Hezbollah from moving the captured soldiers farther north and sent troops into southern Lebanon to retrieve them. This initial response appears to have been within the limits of self-defense.

Over the next days and weeks, however, the crisis rapidly escalated. Hezbollah launched hundreds of Katyusha missiles against cities in northern Israel, including Haifa, forcing hundreds of thousands of civilians to flee. (160) Likewise, the IDF increased artillery attacks and air strikes against countless targets in all parts of Lebanon, including the southern border area, Beirut, and Tripoli. (161) Some 15,000 Lebanese houses and apartments were destroyed, as were 630 kilometers of roads. The day after the Zarit-Shtula incident, Israel bombarded the Beirut airport, destroying all three runways as well as the main road between the airport and the capital. Israel claimed this was necessary to prevent Hezbollah from receiving arms shipments as well as from flying the abducted soldiers out of the country (e.g. to Iran). Israel also installed a naval and aerial blockade on Lebanon and destroyed the main highway between the Beirut and the Syrian capital Damascus. On several occasions, the IDF targeted Lebanese military bases and installations, leading to the death of some twenty-eight Lebanese soldiers. (162) As the crisis continued, Israel also engaged in fierce combat with Hezbollah fighters in southern Lebanon and carried out commando raids against pockets of Hezbollah fighters in the Beqaa valley.

If we assess these acts in light of the proportionality and necessity requirements--regardless of their (il)legality under international humanitarian law--we must first consider that the escalation of the conflict was due to the conduct of both the IDF and Hezbollah. Indeed, the chain of events beginning on July 12 transformed Israel's exercise of self-defense against a relatively small-scale attack into an all-out war between the IDF and Hezbollah fighters. This in itself does not qualify the Israeli reaction as disproportionate. Hezbollah proved to be far more capable and better equipped than was originally thought, and its constant missile attacks justified Israel's response. (163) Consequently, Israel's ground campaign in southern Lebanon seems to fit within the proper exercise of the fight to self-defense. The same would be true for Israeli air strikes against Hezbollah strongholds in Shiite suburbs of Beirut as well as commando raids in the Beqaa valley. These acts should not be measured against the initial Hezbollah attack of July 12, but against the mutually reinforcing cycle of violence that ensued. From this perspective, these acts were a proportionate and necessary response to tackle the threat to Israeli security emanating from Hezbollah.

Nonetheless, as Israel's recourse to self-defense was a response to an attack by Hezbollah, which was not actively supported by the Lebanese government, the proportionality and necessity threshold would seem to imply that Israel's military response should be directed only against Hezbollah targets. Israel at least partially acknowledged this reasoning; the Israeli ambassador to the U.N. declared before the Security Council that "[a]lthough Israel holds the government of Lebanon responsible, it is concentrating its response carefully, mainly on Hizbollah strongholds, positions and infrastructure." (164) Yet, if one looks at the actual use of force by Israel, it is clear that large parts of the Lebanese governmental and civilian infrastructure were destroyed. Lebanese military barracks were targeted, even though Lebanese soldiers did not participate in the fighting. A full naval and aerial blockade targeted not only Hezbollah, but the whole Lebanese population. These acts not only seemed unnecessary to Israel's exercise of self-defense, they would even seem counterproductive, given that the end goal of the international community (Israel included) was the restoration of Lebanese sovereignty and jurisdiction over all its territory. As an angry Secretary-General remarked, "Israel's operations are doing little or nothing to decrease popular support for Hezbollah in Lebanon or the region, but are doing a great deal to weaken the Government of Lebanon." (165)

In this regard, Israel apparently exceeded the limits of the right to self-defense. This view was shared by a majority of the Security Council members, who, in different wordings, criticized or condemned Israel's disproportionate use of force during the Council debate on July 14, 2006. (166) In a similar vein, the European Union criticized Israel's disproportionate use of force in a statement on July 13, explicitly declaring that, "the imposition of an air and sea blockade cannot be justified." (167) Again, during open debate in the Security Council on July 21, a considerable majority of U.N. Members criticized Israel for disproportionate use of force, implicitly saying that Israel violated the boundaries of the lawful recourse to self-defense. (168)

Finally, if one assumes--as this article does--that Israel's initial recourse to self-defense was justified not on the basis of the general rules of state responsibility or the willing harboring of Hezbollah by Lebanon, but rather on the basis of the peculiar rule of Draft Article 9, an important adjustment must be made to our proportionality and necessity assessment. Indeed, as Draft Article 9 sets apart the area within a state's territory where a group of persons is exercising elements of governmental authority in the absence of the official authorities, it logically follows that self-defense on this basis should also be constrained to that part of a state's territory. Hence, the activities of the IDF should have been constrained to the Shiite territories where Hezbollah exercised governmental functions, namely the south of Lebanon, the Beqaa valley, and certain suburbs of Beirut. This condition arguably needs to be applied within a margin of flexibility--"Hezbollahland" obviously has no clear-cut boundaries. Nonetheless, certain locations targeted by Israel (such as Tripoli, Jieh and Jounieh) fell beyond the territory controlled by Hezbollah. Consequently, the latter attacks would not have been covered by the right of self-defense.

III. CONCLUSION

The present study has attempted to assess the merits of Israel's claim of self-defense viz. its military operations conducted against Lebanon in July and August 2006. The tentative conclusion is that Israel could rightly invoke Article 51 of the U.N. Charter following the Zarit-Shtula incident. Firstly, the initial attack during which two Israeli soldiers were abducted seems to be of sufficient gravity to qualify as an "armed attack," rather than a mere frontier incident. Secondly, even though the attack was not imputable to the Lebanese authorities in accordance with the general rules on state responsibility, and even though Lebanon could not be seen as willingly harboring Hezbollah, the ratione personae requirement seems to be fulfilled. Indeed, by means of a broad interpretation of Draft Article 9, one could argue that in certain parts of the country Hezbollah was assuming governmental functions in the absence of Lebanese authorities. As a result, Hezbollah's attack could be considered an attack by a state, making the Hezbollah-administered territory liable to a counterattack in self-defense. Even still, Israel seems to have exceeded the limits of the lawful exercise of self-defense by targeting governmental and civilian infrastructure in contravention of the necessity and proportionality thresholds and by carrying out attacks on Lebanese territories not controlled by Hezbollah in contravention of the territorial abstraction created by Draft Article 9.

The reaction of the international community seems to have broadly followed a similar view. A majority of states supported Israel's right of self-defense in principle, but criticized or condemned the disproportionate character of the use of force. The importance of the conflict for the future evolution of the customary international law on the use of force concerns its possible impact on the controversy surrounding self-defense against non-state actors. Indeed, ever since the 9/11 attacks this topic has been a major source of disagreement among states, scholars, as well as, it seems, judges of the International Court of Justice. Together with the United States intervention in Afghanistan in 2001, the present conflict provides one of the few occasions where a majority of states explicitly supported the invocation of Article 51 of the U.N. Charter in response to an attack by a non-state actor. Moreover, it is a rare occasion, possibly the first, where a majority of states has actually supported self-defense against a state on the grounds that the latter state failed to prevent an attack by a non-state actor.

Proponents of a broad interpretation of the right to self-defense may see Israel's operations against Lebanon as an element of state practice and opinio iuris supporting a general right of self-defense against failed states. Their position is not wholly incomprehensible. It is obvious that transnational terrorism, proliferation of weapons of mass destruction, and state failure pose serious threats to global security that challenge the original parameters of the right to self-defense. Still, it is crucial to emphasize that these challenges require a cautious approach, building on existing principles rather than abandoning the rules altogether. The best way to adapt to the present security context would seem to revive the "substantial involvement" threshold of Article 3(g) of the Definition of Aggression and to extend its scope to states willingly harboring non-state armed groups, as well as to revive Draft Article 9 with regard to attacks emanating from failed states. Future debates, in the Security Council as in other forums, must make clear how far the concept of "substantial involvement" and the conditions of Draft Article 9 may be stretched without eroding the pillars of the U.N. collective security system.

In the meantime, one should not disregard the fact that Israel argued that Hezbollah's attack could be imputed to the government of Lebanon. Justifying its self-defense claim can be brought within the existing legal framework on the use of force as a result of Hezbollah's specific role as a "state within the state" and the recourse to Draft Article 9. Thus, it seems to go too far to contemplate the conflict as a new road for jus ad bellum. Rather, it may be seen as the discovery of an older, existing road. In the end, even though the jus ad bellum is unquestionably in need of clarification, a general right to exercise self-defense against non-state actors and failed states would have Article 51 fall prey to arbitrariness and double standards.

(1) S.C. Res. 1701, U.N. Doc. S/RES/1701 (Aug. 11, 2006).

(2) Middle East Crisis: Facts and Figures, BBC NEWS, Aug. 31, 2006, http://news.bbc.co.uk/2/hi/middle_east/5257128.stm. The number of casualties among Hezbollah militants remains uncertain: Israel estimates 530 Hezbollah fighters were killed, while Hezbollah and fellow Shi'a militant group Areal set the number at 250.

(3) Jus ad bellum can be described as the international law dealing with the recourse to force between states. Given the general prohibition against the inter-state use of force set forth in Article 2, paragraph 4 of the U.N. Charter, some prefer the phrase jus contra bellum. Both terms must be distinguished from the jus in bello, i.e., international humanitarian law dealing with the conduct of hostilities and the protection of civilians in times of armed conflict.

(4) Article 51 reads, "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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security." U.N. Charter art. 51.

(5) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131 (July 9) [hereinafter Palestinian Wall].

(6) Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116 (Dec. 19) [hereinafter DRC v. Uganda].

(7) See generally Michael Bothe, Terrorism and the Legality of Pre-emptive Force, 14 EUR. J. INT'L L. 227 (2003); Antonio Cassese, Terrorism is Also Disrupting Some Crucial Legal Categories oflnternational Law, 12 EUR. J. INT'L L. 993 (2001); Luigi Condorelli, Les Attentats du 11 Septembre et Leurs Suites: ou va le Droit International?, 105 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 829, 838 (2001); Jost Delbruck, The Fight Against Global Terrorism: Self-Defense or Collective Security as International Police Action? Some Comments on the International Legal Implications of the "War against Terrorism", 44 GERMAN Y.B. INT'L L. 9 (2002); Jackson Nyamuya Maogoto, War on the Enemy: Self-Defence and State-Sponsored Terrorism, 4 MELBOURNE J. INT'L L. 406 (2003); Anna Caroline Muller, Legal Issues Arising from the Armed Conflict in Afghanistan, 4 NON-STATE ACTORS AND INT'L L. 239 (2004); Scan D. Murphy, Terrorism and the Concept of "Armed Attack" in Article 51 of the U.N. Charter, 43 HARV. INT'L L.J. 41 (2002); Eric P. J. Myjer & Nigel D. White, The Twin Towers Attack: An Unlimited Right to Self-Defence?, 7 J. CONFLICT & SEC. L. 5 (2002); Tom Ruys & Sten Verhoeven, Attacks by Private Actors and the Right of Self-Defence, 10 J. CONFLICT & SEC. L. 289 (2005); Oscar Schachter, The Lawful Use of Force by a State Against Terrorists in Another Country, 19 ISR. Y.B. ON HUM. RTS 209 (1989); Carsten Stahn, International Law at a Crossroads? The Impact of September 11, 62 HEIDELBERG J. INT'L L. 183 (2002).

(8) Olivier Corten, The Controversies Over the Customary Prohibition on the Use of Force: A Methodological Debate, 16 EUR. J. INT'L L. 803, 805-09, 812-20 (2005). While arguing that virtually no authors question the importance of custom in debates surrounding the scope of the prohibition on the use of force, Corten nevertheless points to important divergences between the "extensive" and the "restrictive" approach to the customary prohibition on the use of force, relating, for example, to different perceptions of the role of dominant states, the pace of customary changes, the relative importance of state practice, and opinio iuris. Id.

The idea that custom is crucial for clarifying existing controversies relating to the prohibition on the use of force can be founded on two distinct premises. On the one hand, one might rely on the role of subsequent state practice for the interpretation of treaties, as recognized by Article 31, [section]3 of the 1969 Vienna Convention on the Law of Treaties. Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331. Alternatively, some authors argue that Article 51 of the U.N. Charter is only part of a broader pre-existing fight of self-defence in customary international law. See, e.g., CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 7 (2d ed. 2004)

The two constitutive elements of customary international law are state practice and opinio iuris. The former element refers to the actual conduct of states, whereas the latter refers to the belief that a certain conduct is prescribed by law. This belief may be derived from statements made by responsible state agents. On the evaluation of state practice and opinio iuris, see Michael Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INT'L L. 1 (1974-75).

(9) As the U.N. Security Council is the primary international body that deals with international peace and security, statements submitted during the course of Council debates and resolutions adopted by the Council are of paramount importance in identifying opinio iuris relating to the jus ad bellum. See Ian Johnstone, Security Council Deliberations: The Power of the Better Argument, 14 EUR. J. INT'L L. 437 (2003) (discussing the role of discursive interaction in the Security Council); O. Corten, La participation du Conseil de Securite a l'elaboration, a la cristallisation ou a la consolidation de regles coutumieres, 37 REVUE BELGE DE DROIT INTERNATIONAL 552 (2004) (discussing the contribution of Security Council resolutions).

(10) International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10(SUPP) (Dec. 12, 2001) [hereinafter Draft Articles] (according to the Draft Articles, "[t]he conduct of a person or group of persons shall be considered an act of a state under international law if the person or group of persons is in fact exercising 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."). Id. art. 9. See also JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES 387 (2002).

(11) See, e.g., Amnesty International, Israel/Lebanon: Deliberate Destruction or "Collateral Damage"? Israeli Attacks on Civilian Infrastructure, Aug. 23 2006, available at http://web.anmesty.org/library/index/engmde180072006; Jan Egeland, U.N. Under-Secretary-General, Press Conference (Aug. 30, 2006), available at http://www.un.org/News/briefings/docs/2006/060830_Egeland.doc.htm.

(12) See Anthony Shadid & Scott Wilson, Hezbollah Raid Opens 2nd Front for Israel, WASH. POST, July 13, 2006, at Al; Greg Myre & Steven Erlanger, Israelis Enter Lebanon after Attacks, N.Y. TIMES, July 13, 2006, at Al; Hezbollah Seizes Israeli Soldiers, BBC NEWS, July 12, 2006, http://news.bbc.co.uk/2/hi/middle east/5171616.stm; Amos Harel, Hezbollah Kills 8 Soldiers, Kidnaps Two in Offensive on Northern Border, HAARETZ, July 13, 2006, available at http://www.haaretz.com/hasen/pages/ShArt.j html?itemNo-737825.

(13) Ehud Olmert, Israeli Prime Minister, Press Conference: 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 [hereinafter Olmert Press Conference].

(14) Id.

(15) Permanent Representative of Israel to the United Nation, Identical Letters Dated 12 July 2006 from the Permanent Representative of Israel to the United Nations Secretary-General and the President of the Security Council, U.N. Doc. S/2006/515 (July 12, 2006) [hereinafter Israel July 12 Letters]. According to the ICJ, the obligation to immediately report measures undertaken in self-defense to the U.N. Security Council does not reflect customary international law. Nevertheless, the absence of a report can weaken a state's claim of self-defense, as it constitutes one of the factors indicating whether the state in question was itself convinced that it was acting in self-defense. Military and Paramilitary Activities (Nicar. v. U. S.), 1986 I.C.J. 14, [paragraph] 200 (June 27). [hereinafter Nicar. v. U.S.].

(16) Id.

(17) Id.

(18) Charge d'affaires of the Permanent Mission of Lebanon to the United Nations, Identical letters dated 13 July 2006from the Charge d'affaires 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. S/2006/518 (July 13, 2006) [hereinafter Lebanon July 13 Letters].

(19) Id.

(20) Id.

(21) See U.N. SCOR, 61st Sess., 5488th mtg., U.N. Doc. S/PV.5488 (July 13, 2006).

(22) See U.N. SCOR, 61st Sess., 5489th mtg., U.N. Doc. S/PV.5489 (July 14, 2006).

(23) Id.

(24) Id.

(25) G8 St. Petersburg Summit Declaration, Middle East (July 16, 2006), available at http://en.g8russia.ru/docs/21.html.

(26) S. Res. 534, 109th Cong (2006) (enacted).

(27) Israel Acting in Self-Defence, Says Howard, ABC NEWS ONLINE, July 16, 2006, http://www.abc.net.au/news/newsitems/200607/s1687707.htm.

(28) See, e.g., Press Release, Secretary-General, Secretary-General Says 'Immediate Cessation of Hostilities' Needed in Lebanon, Describes Package Aimed at Lasting Solution, in Security Council Briefing, U.N. Doc. SG/SM/10570, SC/8781 (July 20, 2006) [hereinafter Secretary-General July 20 Press Release].

(29) See U.N. SCOR, 61st Sess., 5493d mtg., U.N. Doc. S/PV.5493, S/PV.5493 (RESUMPTION1) (July 21, 2006).

(30) The League of Arab States (LAS) consists of twenty-two member states as well as one observer state (Eritrea). The permanent observer of the LAS explicitly referred to "Israeli acts of aggression" and several member states such as Syria and Saudi Arabia submitted statements of their own in which they vehemently condemned the Israeli aggression. Egypt, however, took a more moderate stance, avoiding any reference to "aggression" and calling instead for measures to end Israeli occupation of Arab lands. Id.

(31) Id.

(32) See, e.g., Press Release, Office of the Secretary-General, Secretary-General Shocked by Coordinated Israeli Attack on United Nations Observer Post in Lebanon, Which Killed Two Peacekeepers, U.N. Doc. SG/SM/10577 (July 25, 2006); Security Council, Statement by the President of the Security Council, U.N. Doc. S/PRST/2006/34 (July 27, 2006).

(33) See, e.g., Lebanese Bury Qana Strike Victims, BBC NEWS, Aug. 18, 2006, available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/middle_east/5263982.stm. Secretary-General, Secretary-General Urges Security Council to Condemn Israeli Attack on Qana, Call for Immediate Cessation of Hostilities, in Statement to Emergency Meeting, U.N. Doc. SG/SM/10580, SC/8790 (July 30, 2006); Security Council, Statement by the President of the Security Council, U.N. Doc. S/PRST/2006/35 (July 30, 2006).

(34) These eleven members are: the Russian Federation, Ghana, Argentina, the United States, Japan, the United Kingdom, Peru, Denmark, Slovakia, Greece, and France. Out of the four other Council members, Qatar and China denounced the "Israeli aggression," whereas Congo and the United Republic of Tanzania refrained from speaking out on the issue of self-defense.

(35) See, e.g., Putin Questions Israel's Motives, CBS NEWS, July 15, 2006, available at http://www.cbsnews.com/stories/2006/07/15/world/main1807090.shtml; Seymour M. Hersh, Watching Lebanon, Washington "s Interests in Israel "s War, NEW YORKER, Aug. 21, 2006, at 28.

(36) Nicar. v. U.S., supra note 15, at [paragraph] 127. See also Dino Kritsiotis, Arguments of Mass Confusion, 15 EUR. J. INT'L L. 233, 237-38 (2004).

(37) Nicar. v. U.S., supra note 15, at [paragraph] 191.

(38) Definition of Aggression, G.A. Res. 3314 (XXIX), Annex, 2319th plen. mtg., U.N. Doc. A/RES/3314(XXIX) (Jan. 1, 1975) [hereinafter Definition of Aggression]; see also id. at [paragraph] 195.

(39) Nicar. v. U.S., supra note 15, at [paragraph] 195. The ICJ again relied upon the Definition of Aggression in DRC v. Uganda, when it examined whether the Ugandan invasion of the eastern provinces of the DRC met the standards of self-defense. DRC v. Uganda, supra note 6, at [paragraph] 146.

(40) Definition of Aggression, supra note 38 arts. 2, 3(g).

(41) YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 193 (4th ed. 2005).

(42) Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, [paragraph] 195 (Nov. 6).

(43) Id. On the "accumulation of events" theory, see D.J. HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 898 (5th ed., Sweet & Maxwell 1998).

(44) Nicar. v. U.S., supra note 15, [paragraph] 195.

(45) See, e.g., DINSTEIN, supra note 41, at 195; John Lawrence Hargrove, The Nicaragua Judgment and the Future of the Law of Force and Self-Defense, 81 AM J. INT'L L. 135, 139-40 (1987); G. G. Fitzmaurice, The Definition of Aggression, 1 INT'L & COMP. L.Q. 137, 139 (1952).

(46) See Nicar. v. MS., supra note 15, [paragraph][paragraph] 195,231.

(47) GRAY, supra note 8, at 146.

(48) See, e.g., Joshua Frank, Kidnapped in Israel or Captured in Lebanon? Official Justification for Israel's Invasion on Thin Ice, GLOBAL RESEARCH, July 25, 2006, available at http://www.globalresearch.ca /index.php?context=viewArticle&code=FRA20060725&articleId=2813.

(49) After the ceasefire was put in place, Hezbollah leader Hassan Nasrallah publicly apologized on Lebanese television for the capture of the two Israeli soldiers, saying that he would not have ordered the operation if he had known it would lead to a month-long war with Israel. See, e.g., Paula Kruger, Nasrallah Apologises for Capture of Israeli Soldiers, WORLD TODAY, Aug. 28, 2006.

(50) The Secretary-General, Report of the Secretary-General on the United Nations Interim Force in Lebanon, delivered to the Security Council, U.N. Doc. S/2006/560 (July 21, 2006).

(51) S.C. Res. 1701, U.N. Doc. S/RES/1701 (Aug. 11, 2006).

(52) See, e.g., J. Brunnee, The Security Council and Self-Defence: Which Way to Global Security?, in THE SECURITY COUNCIL AND THE USE OF FORCE 122 (Niels Blokker & Nico Schrijver eds., 2005); Josef L. Kunz, Editorial Comments, Individual and Collective Self-Defence in Article 51 of the Charter of the United Nations, 41 AM. J. INT'L LAW 872, 878 (1947).

(53) IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 278 (1963) (quoting U.S. Senate, Report of the Committee on Foreign Relations on the North Atlantic Treaty). The Report read, "However, if a revolution were aided and abetted by an outside power, such assistance might possibly be considered an armed attack." This statement was made in the context of the NATO Treaty but it is also significant to the interpretation of Article 51 of the U.N. Charter.

(54) E.g., Ian Brownlie, The Use Of Force in Self-Defence, 1961 BRIT. Y.B. INT'L L. 183, 245; Pierluigi L. Zanardi, Indirect Military Aggression, in THE CURRENT LEGAL REGULATION ON THE USE OF FORCE 111, 111 (Antonio Cassese ed., 1986).

(55) Nicar. v. U.S., supra note 15, [paragraph] 195.

(56) See generally Ruys & Verhoeven, supra note 7.

(57) Definition of Aggression, supra note 38, art. 3(g).

(58) See Julius Stone, Hopes and Loopholes in the Definition of Aggression, 71 AM. J. INT'L L. 224, 237-38 (1977); Zanardi, supra note 54, at 114-15.

(59) Stone, supra note 58, at 238.

(60) Nicar. v. U.S., supra note 15, [paragraph] 195.

(61) See GRAY, supra note 8, at 111; Antonio Cassese, The International Community's "Legal" Response To Terrorism, 38 INT'L & COMP. L.Q. 589, 599 (1989).

(62) Nicar. v. U.S., supra note 15, [paragraph] 543 (dissenting opinion of Judge Jennings); id. [paragraph] 259 (dissenting opinion of Judge Schwebel); ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 250-51 (1993); Norman M. Feder, Reading the UN Charter Connotatively: Toward a New Definition of Armed Attack. 19 N.Y.U.J. INT'L L. & POL. 395, 429-30 (1987).

(63) Palestinian Wall, supra note 5, [paragraph] 139 (emphasis added).

(64) Id.

(65) DRC v. Uganda, supra note 6, [paragraph][paragraph] 146, 135.

(66) Israel July 12 Letters, supra note 15; Olmert Press Conference, supra note 13.

(67) See generally Draft Articles, supra note 10. The ICJ referred to the Draft Articles in both, DRC v. Uganda, supra note 6, at [paragraph][paragraph] 160, 293, and Palestinian Wall, supra note 5, [paragraph] 140.

(68) Draft Articles, supra note 10, at 94-99, 106-09.

(69) E.g., Olmert Press Conference, supra note 13; Statement by FM Livni on Hizbullah Attack from Lebanon (July 12, 2006) ("Hizbullah is a terrorist organization, which is part of the Lebanese government.") available at http://www.mfa.gov.il/MFA/About+the+Ministry/MFA+Spokesman/2006/ Statement+by+FM+Livni+on+Hizbullah+attack+from+Lebanon+12-Jul-2006.htm.

(70) See CRAWFORD, supra note 10, at 110-11.

(71) Nicar. v. U.S., supra note 15, at [paragraph][paragraph] 64-65, 86, 109, 115. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia used a somewhat more flexible threshold in the Tadic case ("overall" control or direction), yet this case was directed to issues of individual criminal responsibility, rather than state responsibility. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment of the Appeals Chamber, [paragraph] 137 (July 15, 1999).

(72) United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, [paragraph] 74 (May 24) [hereinafter U.S. v. Iran].

(73) Secretary-General July 20 Press Release, supra note 28.

(74) Lebanon July 13 Letters, supra note 18.

(75) Statement by H.E. Ambassador Dan Gillerman, Permanent Representative of Israel, Before the Security Council During the Open Debate on "The Situation in the Middle East," U.N. SCOR, 61st Sess., 5489th mtg., at 6, UN Doe. S/PV.5489 (July 14, 2006).

(76) S.C. Res. 1559, U.N. Doc. S/RES/1559 (Sept. 2, 2004).

(77) Statement by H.E. Ambassador Dan Gillerman, supra note 75.

(78) Press Release, Security Council, Immediate, Comprehensive Ceasefire Needed in Lebanon Prior to Political Discussion, Acting Foreign Minister Tells Security Council: Israeli Ambassador Says Lebanon Taken Hostage by Terrorism, His Country in Lebanon Only to Protect Itself Against Blatant Act of War, U.N. Doc. SC/8796 (July 31, 2006).

(79) Id.

(80) See supra note 51 and accompanying text.

(81) See Ruys & Verhoeven, supra note 7, at 313.

(82) G.A. Res. 2625 (XXV), U.N. Doc. A/8082 (Oct. 24, 1970). Such an obligation also follows from other resolutions. See S.C. Res. 1189, U.N. Doc. S/RES/1189 (Aug. 13, 1998); S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2002); and G.A. Res. 60/1, [paragraph] 86, U.N. Doc. A/RES/60/1 (Sept. 16, 2005).

(83) See, e.g., 2005 World Summit Outcome Document, [paragraph][paragraph] 81-91, G.A. Res. 60/1, U.N. Doc. A/RES/60/1 (Sept. 15, 2005).

(84) Palestinian Wall, supra note 5, at [paragraph] 35 (separate opinion of Judge Kooijmans), [paragraph] 6 (declaration of Judge Buergenthal), and [paragraph] 33 (separate opinion of Judge Higgins).

(85) Id. at [paragraph] 35 (separate opinion of Judge Kooijmans), [paragraph] 6 (declaration of Judge Buergenthal).

(86) See HIGGINS, supra note 62, at 250-51.

(87) DRC v. Uganda, supra note 6, at [paragraph] 8 (separate opinion of Judge Simma); see also, id. [paragraph] 25 (separate opinion of Judge Kooijmans).

(88) DRC v. Uganda, supra note 6, [paragraph][paragraph]19-31 (separate opinion of Judge Kooijmans), [paragraph][paragraph] 7-15 (separate opinion of Judge Simma).

(89) Id. [paragraph] 9 (dissenting opinion of Judge Koroma).

(90) Id. [paragraph] 15 (dissenting opinion of Judge ad hoc Kateka).

(91) Cassese, supra note 7, at 996; Murphy, supra note 7, at 46-47; Ruys & Verhoeven, supra note 7, at 292-94; GRAY, supra note 8, at 111-14.

(92) See Ruys & Verhoeven, supra note 7, at 294-96.

(93) 1996 U.N.Y.B. 133, U.N. Sales E.97.I.1.

(94) 1997 U.N.Y.B. 89-90, U.N. Sales No. E.00I.1.

(95) See Ruys & Verhoeven, supra note 7, at 294-96.

(96) 1998 U.N.Y.B. 185-86, 1219, U.N. Sales No. E.01.I-.1; S.C. Res. 780, UN Doc. S/1998/780 (Aug. 20, 1998).

(97) S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001).

(98) S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).

(99) 2001 U.N.Y.B. 65-66, U.N. Sales No. E.03.I.1.

(100) Christine Gray, The Use of Force and the International Legal Order, in INTERNATIONAL LAW 589, 604 (Malcolm D. Evans ed., 2003).

(101) I use the broader and more neutral concept of "non-state actor," rather than referring to terrorist attacks/groups. This has the benefit of taking account possible attacks by mercenaries or transnational criminal organizations, while avoiding the controversy concerning the definition of terrorism (evidenced by the failure to adopt a comprehensive convention dealing with international terrorism). Hezbollah is illustrative in this regard. Whereas it is designated as a terrorist organization by several countries, such as Israel, the United States, Canada, and the United Kingdom, it acts as a political organization within Lebanon and is perceived by Arab states as a legitimate resistance movement. Hezbollah as such does not appear on the E.U. list of terrorist organizations, nor on the Russian list released in 2006. Moreover, whereas Hezbollah has on numerous occasions targeted Israeli civilians, it has on other occasions condemned violence against Western civilians and has inter alia condemned attacks against civilians in Egypt and Algeria. Thus, while Hezbollah has clearly engaged in terrorist activities on numerous occasions, not all would agree in qualifying it as a terrorist organization. Significant in the present context is the fact that the attack of July 12, 2006 was primarily directed against a military target, even though attacks against civilian infrastructure were used to create a diversion.

(102) See, e.g., Corten, supra note 8, at 552-66.

(103) Cassese, supra note 7, at 996.

(104) Palestinian Wall, supra note 5, at [paragraph] 139.

(105) E.g., Thomas M. Franck, Editorial Comment, Terrorism and the Right of Self-Defense, 95 AM. J. INT'L. L 839, 839-42 (2001); Christopher Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan, Al Quaeda, and Iraq, 4 SAN DIEGO INT'L L.J. 7, 17 (2003).

(106) Cassese, supra note 7, at 997.

(107) The Permanent Representative of the United States of America, 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, 2001) [hereinafter October 7 Letter].

(108) Carsten Stahn, Terrorist Acts As "Armed Attack": The Right to Self-Defense, Article 51 (1/2) of the UN Charter, and International Terrorism, 27 FLETCHER F. WORLD AFF. 35, 47 (2003).

(109) See, e.g., MICHAEL BYERS, WAR LAW 67 (2005); Albrecht Randelzhofer, Article 51, in THE CHARTER OF THE UNITED NATIONS: A COMMENTARY. VOL. I, 788, 801 (Bruno Simma et al. eds., 2d ed. 2002); Stahn, supra note 108, at 48-50.

(110) Cassese, supra note 61, at 600-05; Ruys & Verhoeven, supra note 7, at 315.

(111) Note the difference in the Declaration by Judge Koroma between a state "deliberately allowing [an armed group] access to its territory, and a State's enabling groups of this type to act against another State." In his view, self-defense would only be lawful in the first situation. DRC v. Uganda, supra note 6, at [paragraph] 9 (declaration of Judge Koroma).

(112) Statement by Foreign Ministry Deputy DG Gideon Meir (July 13, 2006), available at http://www.mfa.gov.il/MFA/About+the+Ministry/MFA+Spokesman/2006 /Statement%20by%20Foreign%20Ministry%20Deputy%20DG%20Gideon% 20Meir%2013-Jul-2006.

(113) Israel July 12 Letters, supra note 15.

(114) Statement by Meir, supra note 112.

(115) Id.

(116) E.g., International Crisis Group (ICG), Amman/Brussels, Hizbollah." Rebel Without a Cause? MIDDLE EAST BRIEFING, July 30, 2003, at 1, 3 (identifying Syria and Iran as Hezbollah's two most powerful patrons, based on ICG interviews with Hezbollah members and informed Lebanese political observers as well as Hezbollah's own statements and commentaries); International Crisis Group, Amman/Brussels, Old Games, New Rules." Conflict on the Israel-Lebanon Border: Executive Summary and Recommendations, ICG MIDDLE EAST REPORT NO. 7, Nov. 18, 2002, at 3-4, 16; Office of the Coordinator for Counterterrorism, U.S. Department of State, Country Report on Terrorism (Apr. 28, 2006), available at http://www.state.gov/s/et/rls/crt/2005/64337.htm; Amos Harel and Yoav Stem, Iranian Official Admits Tehran Supplied Missiles to Hezbollah, HAARETZ, Aug. 5, 2006, available at http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=746631; GRAY, supra note 8, at 172.

(117) Daniel Byman, Should Hezbollah Be Next?, 82 FOREIGN AFF., Nov./Dec. 2003, at 54, 60-62.

(118) Id. at 61-62.

(119) As the crisis unfolded, sympathy for Hezbollah among the population as well as among government officials increased significantly. In the aftermath of the crisis, for example, the (Christian) Lebanese President Emile Lahoud criticized the proposal to disarm Hezbollah, calling Hezbollah "the only force in the Arab world who stood up to Israel" and referring to Hezbollah fighters as martyrs. Tim Butcher & David Blair, Lebanese Troops Will Not Disarm Hizbollah, TELEGRAPH, Aug. 17, 2006.

(120) Office of the Coordinator for Counterterrorism, supra note 116.

(121) In the aftermath of the crisis, the Lebanese army did increase troop deployment in southern Lebanon and confiscated some Hezbollah weapon supplies. Philippe Bolopion, Beyrouth Affirme Saisir des Armes Livrees au Hezbollah par la Syrie, LE MONDE, Aug. 30, 2006. However, the situation at that time was arguably very different than before the start of the conflict: Hezbollah had been substantially weakened, the Lebanese army was supported by an enhanced U.N. mission, and most importantly, Lebanese troop deployment was approved by Hezbollah and its patrons in order to speed up Israel's withdrawal and allow Hezbollah the opportunity to recover.

(122) October 7 Letter, supra note 107.

(123) NATIONAL COMMISSION ON TERROR/ST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 66-67 (2004), available at http://www.9-11commission.gov/report/911Report.pdf. The Commission states:

   Bin Ladin appeared to have in Afghanistan a freedom of movement
   that he had lacked in Sudan. Al Qaeda members could travel freely
   within the country, enter and exit it without visa or any
   immigration procedures, purchase and import vehicles and weapons,
   and enjoy the use of official Afghan Ministry of Defense license
   plates.... The Taliban seemed to open the doors to all who wanted
   to come to Afghanistan to train in the camps. The alliance with the
   Taliban provided al Qaeda a sanctuary in which to train and
   indoctrinate fighters and terrorists, import weapons, forge ties
   with other jihad groups and leaders, and plot and staff terrorist
   schemes. While Bin Ladin maintained his own al Qaeda guesthouses
   and camps for vetting and training recruits, he also provided
   support to and benefited from the broad infrastructure of such
   facilities in Afghanistan made available to the global network of
   Islamist movements.

Id.

(124) Declarations on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, G.A. Res. 2625, 25th Sess., 1883d plan. mtg., U.N. Doc. A/RES/2625(XXV) (Oct. 24, 1970).

(125) Corfu Channel Case (U.K.v. Alb.), 1949 I.C.J. 4 (Apr. 9).

(126) U.S. v. Iran, supra note 72.

(127) See Ruys & Verhoeven, supra note 7, at 305-08, 317-19.

(128) Id. at 317-18.

(129) Ruys & Verhoeven, supra note 7, at 293-96.

(130) See Christine Gray & Simon Olleson, The Limits of the Law on the Use of Force: Turkey, Iraq and the Kurds, 12 FINNISH Y.B. INT'L. L. 355, 387 (2001); GRAY, supra note 8, at 115-17.

(131) DR Congo troops 'to repel Rwanda', B.B.C. NEWS, Dec. 3, 2004, http://news.bbc.co.uk/2/hi/africa/4061793.stm. See Ruys & Verhoeven, supra note 7, at 296.

(132) GRAY, supra note 8, at 189-90.

(133) DRC v. Uganda, supra note 6, [paragraph][paragraph] 13-27 (opinion of Judge Kooijmans), [paragraph][paragraph] 10-12 (opinion of Judge Simma); see also Randelzhofer, supra note 109, at 802; Bothe, supra note 7, at 233.

(134) With regard to Lebanon, see, e.g., S.C. Res. 425, U.N. Doc. S/RES/425 (Mar. 19, 1978); S.C. Res. 483, U.N. Doc. S/RES/483 (Dec. 17, 1980). With regard to the Democratic Republic of Congo, see, for example, S.C. Presidential Statement, The Situation Concerning the Democratic Republic of the Congo, S/PRST/2004/45 (Dec. 7, 2004).

(135) Ruys & Verhoeven, supra note 7, at 319.

(136) The Minister of Foreign Affairs of Iraq, Identical Letters dated 12 June 1997 from the Minister for Foreign Affairs of Iraq addressed to the Secretary-General and to the President of the Security Council, U.N. Doc. S/1997/461 (June 16, 1997); KEESING'S RECORD OF WORLD EVENTS 40474, 40522 (1995); GRAY, supra note 8, at 115-17.

(137) S.C. Presidential Statement, supra note 134.

(138) GRAY, supra note 8, at 190.

(139) Id.

(140) DRC v. Uganda, supra note 6, [paragraph][paragraph] 75, 78.

(141) For one of the few cases applying this principle, see Yeager v. Iran, 17 Iran-U.S. C1. Trib. Rep. 92, 104 (1987).

(142) Draft Articles, supra note 10, art. 9.

(143) CRAWFORD, supra note 10, at 115.

(144) Id. (according to the Commentary, a general de facto government is itself an apparatus of the state, replacing that which existed previously).

(145) Id. (emphasis added).

(146) Jan Hessbruegge, The Historical Development of the Doctrines of Attributability and Due Diligence in International Law, 36 N.Y.U.J. INT'L L. & POL. 265,275 (2004).

(147) Report of the Secretary General, supra note 50, [paragraph][paragraph] 27-28.

(148) Byman, supra note 117, at 60; S. Haddad, The Origins of Popular Support for Lebanon's Hezbollah, 29 STUD. 1N CONFLICT AND TERRORISM 21, 24 (2006).

(149) Byman, supra note 117, at 60.

(150) Lebanon. the many hands and faces of Hezbollah, IRIN, Mar. 29, 2006, available at http://www.irinnews.org /report.asp?ReportID=52494&SelectRegion=Middle_East.

(151) International Crisis Group, Old games, new rules: conflict on the Israel-Lebanon border, MIDDLE EAST REPORT NO. 7, Nov. 18, 2002, at 5, available at http://www.crisisgroup.org/home/index.cfm?1=1&id=4098.

(152) Henry Schuster, Hezbollah's Secret Weapon, CNN NEWS, July 25, 2006, http://www.cnn.com/2006/WORLD/meast/07/24/schuster.hezbollah/index.html.

(153) See Yeager v. Islamic Republic of Iran, 17 Iran-U.S. C1.Trib. Rep. 92, 110 (1987).

(154) International Commission of Jurists, Pakistan--The ICJ condemns the illegal exercise of judicial power by tribal councils in Pakistan, (July 26, 2002), available at http://www.icj.org/news.php3?id_article=2641&lang=en.

(155) CRAWFORD, supra note 10, at 116.

(156) E.g., S.C. Res. 1583, U.N. Doc. S/RES/1583 (Jan. 28, 2005).

(157) While neither of these standards is mentioned in Article 51 of the U.N. Charter, they are both considered to be part of the customary international law regulating the use of force by a universal literature and jurisprudence. See Nicar. v. U.S. supra note 15, [paragraph] 512 et seq. The origin of these standards is generally traced back to the diplomatic correspondence between the United States and the United Kingdom in the wake of the 1837 Caroline incident. On the Caroline incident, see R.Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT'L L. 82, 82-92 (1938).

(158) GRAY, supra note 8, at 120-126.

(159) Hassan M. Fattah & Steven Erlanger, Israel blockades Lebanon; wide strikes by Hezbollah, N.Y. TIMES, July 14, 2006 at A1; Greg Myre & Steven Erlanger, Clashes Spread to Lebanon as Hezbollah Raids Israel, N.Y. TIMES, July 13, 2006 at Al.

(160) Israeli police estimates that a total number of 3,699 Hezbollah rockets landed in Israel. BBC NEWS, supra note 2.

(161) The Israeli military estimates that some 7,000 targets were hit by air strikes. Id.

(162) According to the NY Times' Interactive Graphic of the attacks on a day-to-day basis, Israel bombed Lebanese military barracks on July 17, 18 and 27. Interactive Graphic: Attacks, Day by Day, N.Y. TIMES, available at http://topics.nytimes.com/top/news/international/countriesandterritories/ israel/index.html.

(163) See DINSTEIN, supra note 41, at 238-40.

(164) Statement of Permanent Representative of Israel, supra note 75, at 6 (emphasis added).

(165) Secretary-General July 20 Press Release, supra note 28.

(166) See U.N. SCOR, 61st Sess., 5489th mtg., U.N. Doc. S/PV.5489 (July 14, 2006).

(167) Fattah & Erlanger, supra note 159.

(168) See generally U.N. SCOR, 61st Sess., 5493rd mtg., U.N. Doc. S/PV.5493 (July 21, 2006).

TOM RUYS, Research Fellow of the Fund for Scientific Research Flanders, Institute of International Law, University of Leuven, Belgium. The author would like to thank Jan Wouters, Sten Verhoeven and Isabelle Heyndrickx for their valuable comments.