Pre-emptive Self Defense and International Law

Last year, for reasons we’re not entirely clear on, Hamas-led Palestinians started firing rockets and mortars at civilian populations in Israel. Israel put up with it for a while, but then after Christmas it finally responded with a bunch of air strikes on targets in the Hams-controlled Gaza region, and blocked shipping into the area.

As usual, there was a U.N. outcry against Israel’s actions, and a commission was formed. Last week, after several months of review, the commission came out with its report. Although it did say that Hamas shouldn’t have fired rockets at civilians, it came down hardest on Israel, concluding that Israel had committed major violations of international law, probably war crimes, and its actions did not count as self defense.

There have been the usual cries of unfairness all around, what one would expect in any such matter. The whole matter seems to be just par for the course, and we admit to not paying all that much attention to any of these goings-on.

But this morning, a piece in the WSJ by notable criminal law scholar Paul H. Robinson caught our eye. In his article, “Israel and the Trouble With International Law,” Mr. Robinson argues that, although the U.N.’s report might strike many as “a bit unsettling or even bizarre,” in nonetheless is probably correct, in terms of international law.

Mr. Robinson argues that the rules of international law forbid the kind of self defense that American criminal law would allow. Under international law, he says, if a gang of thugs is openly preparing to rob your store and kill your security guards, and is assembling in the parking lot across the street, and there are no police, you still cannot act in self defense until they actually start their attack. But under American criminal law you would be allowed to use such force as is “immediately necessary” to prevent the attack from happening, without waiting to be attacked first.

Similarly, he says, if a neighbor was letting thugs use his house, from which they regularly attacked your family, and there are no police, then international law would forbid you from using force against the thugs and the house they’re taking sanctuary in. But American criminal law would let you do it.

And as a third example, he says that international law only allows force against those thugs when they’re presently in the act of attacking your family, and not during the periods in between attacks, even though it’s an ongoing series.

So, he concludes, by going after the source and trying to prevent further acts of violence against its civilian population, Israel probably did violate international law here. The rules only let it use force to stop the individual attacks, and only while they’re actually happening.

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We admire Mr. Robinson very much, but he’s not precisely correct here. He focuses on Article 51, but that’s not the only source of law here. The law on pre-emptive self defense is a non-Charter use of force, but which is nonetheless permitted by customary international law.

Article 51 of the U.N. Charter says that nothing in the Charter is to be construed so as to impair the “inherent right” (meaning it pre-existed the U.N.) of nations to use self defense against armed attack.

“Armed attack” does seem pretty limiting. Not every act of aggression counts as an attack, after all. Merely threatening force doesn’t count. The enemy may in fact be involved in a use of force, and it may even be an illegal use of force, but it still might not be an armed attack.

So Robinson cites the Nicaragua case, where the Sandinistas in Nicaragua were unlawfully supplying arms and sanctuary to insurgents trying to topple El Salvador’s government. Even though this was an illegal use of force, El Salvador had no right under international law to use force itself in order to stop Nicaragua’s violations of its sovereignty.

But an armed attack can be taking place if the enemy is massing across the border. Like his example with the thugs across the street, who are just waiting for night to fall before they attack your store. If that massing of troops is just an exercise, well then you’re not allowed to attack them.

But if it truly is preliminary to an imminent attack, then by all means strike them. Read on to see why it’s okay to do so.

Remember, though, you need to immediately report to the Security Council that you are under armed attack. And you need to promptly report your response actions to the Security Council.

The main things to keep in mind are that your force must be necessary, and it must be proportional.

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The most famous case in international law, The Caroline (1906), deals with the hot-button issue of preemptive self defense. This one predates Article 51, and it is certainly part of customary international law.

The United States had a bunch of nasty battles with Canada during the War of 1812. There was a lot of bad blood, and the two countries remained hostile for many years thereafter. Unlike now, Canada was the major power, and the U.S. was the little guy. Nevertheless, the U.S. kept trying to take bits of Canada, and the border between Lake Erie and Lake Ontario was heavily militarized. Sound familiar?

The Canadians learned that the U.S. was planning a military incursion across the border into Canadian territory. Before the U.S. began its attack, however, the Canadians struck first.

The Canadians crossed the border first, grabbed the U.S. ship The Caroline, and killed everyone on board. Then they set the ship on fire. Then they launched it over Niagara Falls.

The U.S. Secretary of State at the time was Daniel Webster. He and his British counterpart Lord Ashburton began writing back and forth about what constituted proper self defense. It resulted in a letter from Webster saying:

The President sees with pleasure that your Lordship fully admits those great principles of public law, applicable to cases of this kind, which this government has expressed; and that on your part, as on ours, respect for the inviolable character of the territory of independent states is the most essential foundation of civilization. And while it is admitted on both sides that there are exceptions to this rule, he is gratified to find that your Lordship admits that such exceptions must come within the limitations stated and the terms used in a former communication from this department to the British plenipotentiary here. Undoubtedly it is just, that, while it is admitted that exceptions growing out of the great law of self-defense do exist, those exceptions should be confined to cases in which the ‘necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.’

The law arising from this case is that, for pre-emptive self defense to be lawful:

1) The necessity must be immediate;

2) The necessity must be overwhelming;

3) There must be no other choice;

4) There must be no time to deliberate; and

5) It should also be proportional. (This comes from an earlier letter. Here, killing everyone, burning the ship, and sending it over the falls was found not to have been proportional.)

The Caroline keeps coming up again and again whenever the question of anticipatory self-defense is proper. These five criteria are the ones that get cited by pretty much everyone.

The Nazis, for example, when they invaded Poland, went out of their way to make it look like Poland had started it, so as to justify their invasion. They even dressed up Polish prisoners in German uniforms, shot them and filmed it, and blamed it on Poland. They were trying to make the facts appear to fit the requirements of The Caroline. The Nuremburg tribunal, however, did not buy it.

In the Cuban Missile Crisis, the United States went out of its way to say its actions were not self-defense, but merely a quarantine of Cuba on the high seas to keep the missiles out. A blockade certainly is a kind of use of force, but it is less intrusive than other kinds. The United States proposed this theory in the U.N., and it was representatives from Ghana (who, unlike ours, had been well-educated in international law) who stood up and cited The Caroline case, asking “is this emergency instant, overwhelming, leaving no choice of means, and no moment for deliberation?”

When the Israelis bombed Iraq’s nuclear reactor in 1981 (because it could have been capable of making weapons-grade plutonium), that also led to lengthy discussions of whether the standards for preemptive self-defense attacks had been met. Of course, the act had already been done by then.

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So if one reads the U.N. report more closely, one finds that it goes out of its way to find Israel’s strikes to have been disproportionate to the threat, primarily by including the blockade of shipping. The reasoning goes that the blockade punished the entire population, and wasn’t necessary to self defense.

We’re not particular fans of Israel, but that simply doesn’t wash. Gaza doesn’t produce its own rockets and mortars. Hamas gets them from Iran, Syria or other sources. So a blockade to prevent the ongoing attackers seems perfectly proportionate and necessary here.

Going through the five factors, what do we have?

1) Was the necessity immediate? Certainly. Israel had been under ongoing attack for months, with no sign of it letting up.

2) Was the necessity overwhelming? Sure. Civilians were being targeted for strikes by military weapons, and sovereignty was at stake as well.

3) Was there no other choice? It sure looked like it. Negotiations and diplomacy seemed only to be encouraging further attacks, as they always seem to do in that part of the world.

4) Was there no time to deliberate? Hmm. On the one hand, the Israelis seem to have been deliberating for months already, but if that precludes them from eventually saying enough is enough, then such a rule would encourage less deliberation, not more. Their population was under attack, and there was reason to believe it was going to happen again immediately, so it seems justifiable to call this as being no time to deliberate.

5) Was the response proportionate? The blockade was, to the extent it was focused at preventing Hamas from making further attacks. The air strikes targeted Hamas command, control and munitions, using precision-guided weapons to minimize collateral damage. It sure seems to have been proportional within the meaning of the law. Although many non-Hamas civilians were killed or wounded by the strikes, that does not change the fact of their limited purpose and execution.

So yes, if one only has the U.N. Charter to go by, Israel would seem to have violated international law. But there’s more to international law than just the U.N. charter. And under customary international law, it looks like Israel’s use of force was a lawful act of pre-emptive self defense.