Last week, we looked at how Israel had responded to Hezbollah’s ‘provocation’ by threatening to “turn back the clock in Lebanon by twenty years.”Let’s conclude the discussion by considering some of the general principles of international law that constitute reasonable limitations to a state’s exercise of the right of self-defense as also applicable to the Israel-Hezbollah issue.
The right to use force in self-defense against terrorism is not without limitations. Some of the pre-conditions include the general principles governing self-defense, such as the requirement that there must have been an ‘armed attack’, the occurrence of an actual attack, and the principles of necessity and proportionality.
The first of these limits, the gravity threshold, means that a state is only entitled to respond with forcein self-defense if it has been the victimof serious or sustained terrorist attacks that are comparable to an ‘armed attack’ by a state.Consequently, isolated or minor terroristattacks do not constitute armed attacks but must continue to be considered criminal acts. In the Israeli-Hezbollah case, it is therefore important to consider whether attacks on Israel as a victim state are isolated or minor attacks on her.
Another limitation in the exercise of the right of self-defense relatesto the need for an actual terrorist attack to have occurred. The right to employ force against states that host or harbour non-stateterrorist organisations is only applicable where there has alreadybeen an attack by those non-stateactors. Whilst conceding that there may be exceptional circumstances in which anticipatory action m ay b e taken by a state where any terrorist attack is imminent, it is doubtful if such action fall within the right of self-defense as exercised by Israel. For instance, on 9/11 and the subsequent war in Afghanistan by the United States, most members of the international community rejected claims b y the United States that it was exercising its right of self-defense. This demonstrates that the right to use force against terrorism is limited to responding to actual ‘armed attacks’.
Thirdly, let’s briefly look at the necessity principle. It is the principle of last resort. The necessity principle permits a state to respond to terrorist attacks with military force if such force is the only reasonable way of dealing with the terrorist threat. Impliedly, a victim state cannot use military force until all other non-forcible means of avertingthe threat have been exhausted. Most members of the international community believe that Israel failed, neglected or refused to exhaust all other available non-forcible means before resorting to the use of force. This effectively renders any claimed self-defense illegal, invalid and unacceptable.
Lastly, we also have the principle of proportionality. This provides that the degree of force a victim state may use in self-defense depends on what action is needed to defend against the terrorist threat. Thus, the precise degree of force permitted in self-defense will vary depending on the particular factual circumstances of a situation.
Where the threat can be removed by limited military forcetargeting the non-state terrorist actors themselves,this should be the extent of the victimstate’s response in self-defense. If, however, the relationship between a host state and a terrorist organisation is particularly close, removal of the terrorist threat may require more extensive military force againstboth the terrorist group and the hoststate itself.
At this point, it is noteworthy to identify a particular challenge. Although in principle, the limitationsmentioned above appear to be relatively easy to identify. However, when attempts are made to apply these principles in practice, I must say that there may be significant difficulties in doing so. Perhaps, it is this difficulty in practical application to facts in the international scene today that has made international law a rather complex affair.
Consequently, we find some powerful states either setting their own standards or bending the provisions of international law to suit their interests. Of course, such self-help measureswill not serve the interest of a sustainable world peace built on mutual respect and compliance with rules of international law.
Till next week, keep in touch!
According to srael’s Chief of Staff, Dan Halutz.
Garwood–Gowers A., Self-defence against Terrorism in the Post-9/11 World, Vol 4 No 2 (QUTLJJ)
 Any state that suffers such isolated or minor attacks c an only lawfully respond by complying with criminal justice procedure measures.
 Allowing the use of force in response to terrorist attacks and threats without reasonable limitations would amount to the militarisation of crime and defeat the purpose of international Law.