Violations of International Law
Sept. 3, 1982
Francis A. Boyle (university of Illinois), Richard A. Falk (Princeton University), C. Clyde Ferguson, Jr. (Harvard law School), Roger Fisher (Harvard law school), Stanley Hoffmann (Harvard University), W. Thomas Mallison (George Washington University).
The invasion of Lebanon by the government of Israel constitutes a violation of UN Charter article 2(3), mandating the peaceful settlement of international disputes, as well as the article 2(4) prohibition on the threat or use of force in international relations against the territorial integrity or political independence of any state. Despite the assertions of Israeli Prime Minister Begin before the General Assembly, the invasion cannot be excused as a legitimate exercise of the right of self-defense recognized by article 51 of the Charter and accepted principles of customary international law concerning the use of force.
The PLO is likewise bound by the article 2(3) and 2(4) obligations, and the Lebanese government must not allow its territory to be used in a manner violative of international law. Nevertheless, the PLO cannot be held legally responsible for every act of violence perpetrated against Israel that occurs anywhere in the world, but only to the extent that the Israeli government can produce clear and convincing evidence of specific actions sanctioned by the PLO. The evidentiary record establishes that during the preceding year, the PLO has in good faith adhered to the terms of the cease-fire applicable to the Lebanese-Israeli border that had been successfully negotiated last summer by President Reagan’s special envoy for the crisis. Consequently, the PLO has not launched any “armed attack” upon Israel as required by article 51 before the latter can resort to the use of force to defend itself. It is Israel that has “attacked” Lebanon and the PLO in violation of its international legal obligations.
Even assuming the contemporary international legal order still recognizes the regressive doctrine of pre-emptive self-defense, the Israeli invasion of Lebanon fails to meet that test as well. As definitively stated by U.S. Secretary of State Daniel Webster in the case of The Caroline, the “necessity of that self-defence [must be] instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Furthermore, Israel cannot invoke the antiquated doctrines of intervention, protection and self-help to justify the invasion, because these were soundly repudiated by a decision of the International Court of Justice in the Corfu Channel Case (1949) as totally incompatible with the proper conduct of international relations in the post-World War II era.
Three seminal U.N. General Assembly resolutions have firmly established the fundamental proposition that non-consensual military intervention by one state into the territorial domain of another state is prohibited for any reason whatsoever: The Declaration on the Inadmissibility of Intervention (1965); The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970); and the Definition of Aggression (1974). At least the Arab Deterrent Force, composed primarily of Syrian troops, had been stationed in Lebanon with the consent of the Lebanese government and conducted its peacekeeping operations with the approval of the League of Arab States, which is the appropriate regional arrangement under Chapter 8 of the U.N. Charter for sanctioning such activities.
Finally, the Israeli invasion of Lebanon has violated the basic principle of customary international law dictating proportionality in the use of force, applicable to even a legitimate exercise of the right to self-defense. The massive scale of death, destruction, dislocations and suffering inflicted by the Israeli army in Lebanon is egregiously disproportionate to any harm that has been perpetrated upon Israel or to any serious threat to its legitimate national security interests posed by the presence of the PLO in Lebanon.
The four Geneva Conventions of 1949 apply in their entirety to the conduct of hostilities by Israel in Lebanon. Additional Protocol 1 (1977) indicates that the members of the PLO who have been captured by the Israeli army should be treated as prisoners of war within the meaning of the Geneva Accords. At the very minimum, captured members of the PLO and other individuals affiliated with them together with all Lebanese and Palestinian civilians, are entitled to the full panoply of protections set forth in the Fourth Geneva Convention and the customary international law of belligerent occupation. Statements by the Israeli government that captured PLO members will be treated as “terrorists” and thus presumably deprived of their protected status under the Geneva Conventions would, if acted upon, constitute a grave violation of the humanitarian laws of armed conflict that have been universally accepted by all civilized states.
As a party to the Geneva Conventions of 1949 the Untied States government has an obligation to respect and to ensure respect for their observance by all other contracting powers. This obligation becomes irresistibly compelling in a situation where Israel has been enabled to invade Lebanon by means of weapons, munitions and supplies provided primarily by the United States government at concessionary rates. To the extent the US government does not prevent Israel from using American weapons in explicit violation of international law and of U.S. domestic statutes applicable to arms transfer agreements, it must assume full legal responsibility before the international community for such proscribed activities committed by Israel in Lebanon. Under the circumstances the United States has an absolute duty to employ the tremendous leverage over Israel afforded by its arms supply relationship in order to secure the latter’s strict obedience to the laws of war and its immediate and unconditional withdrawal from Lebanon as required by U.N. Security Council Resolution 508 (1982) and Resolution 509 (1982), which are legally binding on Israel under Charter article 25.
The Israeli government has no right under international law to intervene in the domestic affairs of Lebanon by dictating the terms of some future government as a condition for the withdrawal of its troops. The future of the Lebanese government must be determined by the Lebanese people without interference or compulsion from any external source. The most effective means to ensure the success of this endeavor is for the Israel immediately to withdraw its troops from Lebanon and to turn over evacuated territory to the Lebanese army, where possible, or to the United Nations Interim Force in Lebanon (UNIFIL). The ultimate disposition of the Arab Deterrent Force should be determined by the League of Arab States in accordance with the wishes of the Lebanese government expressed after an Israeli military withdrawal.
The United States must actively oppose any proposals by the Israeli government to establish some type of international police force in Lebanon that is not under the jurisdiction of the United Nations Security Council. Israeli charges that UNIFIL cannot be trusted because the U.N. is biased against Israel obfuscate the fact that UNIFIL operates under the auspices of the Security Council (where the United States can, if necessary exercise a veto power) not under the General Assembly. The evidentiary record clearly establishes that UNIFIL has proven to be quite effective at preventing the large-scale infiltration of PLO fighters across the Israeli-Lebanese border. A renewed and strengthened mandate for UNIFIL will continue to perform this task until the Lebanese army is reconstituted as an effective and independent military force under the control of the central government. In this regard Israel must also dismantle the Lebanese Christian enclave it has created along the border, whose members have so far illegally resisted the interposition of UNIFIL troops with the collusion of the Israeli government.
A long-term solution to the problems of Lebanon can only be found when Israel is willing to recognize the international legal right of the Palestinian people to self-determination. Neither Egypt, Israel, the United States, nor Jordan have any right under international law to negotiate on behalf of the Palestinian people. Both the U.N. General Assembly and the League of Arab States have determined that the PLO is the legitimate representative of the Palestinian people. That determination must be respected by Israel and the Untied States for the purpose of negotiating an overall settlement on the ultimate disposition of the West Bank, the Gaza Strip and the East Jerusalem. Mutual and simultaneous recognition of their respective rights under international law by Israel and the PLO must be the next stage in the development of the Middle East peace process.
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|Timothy V. Gatto|