For the last two weeks, Israel has enjoyed almost unprecedented international support for its military operations in Lebanon against Hezbollah.
Reminiscent in some respects of the period of widespread international backing for the US after the September 11th attacks, the focus of attention is now more on whether or not Israel will succeed in striking a crippling blow to Hezbollah before it is forced to cease operations under an internationally enforced cease fire, and less on questions of legality and international law.
And yet experience tells us that, sooner rather than later, questions of legality will once again come to the forefront of the international arena, and that the legal and moral challenges raised by the current conflict in Lebanon, currently being addressed far from the focus of international and national public opinion, will soon attract much greater attention.
Unfortunately, even a cursory examination of the relevant issues reveals the inadequacy of international law in providing clear and precise answers to the current dilemmas facing statesmen and soldiers alike.
The inherent right of states for self-defense is one of the better know principles of modern international law, and obviously forms the basis for all current Israeli military operations. And yet, relatively few are aware of the fact that, to this day, the exact meaning and scope of this "inherent" right are far from clear. What event can trigger a self-defense response? Is it limited solely as a response to an actual armed attack by another state (as probably originally intended by the drafters of Article 51 of the UN Charter)? Or should it also include attacks from non-state parties (such as Al-Qaida and Hezbollah)? Is the right limited only as a post-attack response? Or can it be invoked in expectation of a pending attack (the concept of anticipatory self-defense advanced by Israel in respect of the 1967 war and today widely viewed as an accepted principle of international law)? Are there limitations on the scope and extent of the allowable self-defense response? The International Court of Justice has emphasized that only proportional and necessary responses are legitimate within the context of self-defense. But what exactly is "proportional and necessary" in response to the kidnapping of two Israeli solders from Israeli territory? And what is "proportionate and necessary" in response to continued large-scale rocket attacks against Israeli civilian population centers?
Is this a war? One of the traditional definitions of "war" is – "an armed conflict between the armies of two or more states." Under such a definition, the current conflict could be classified as a war only if it were determined that the Israeli and Lebanese armies were fighting one another, which is currently not the case. And yet, Hezbollah is not an "alien" presence in Lebanon. Its existence and operations are, at the least, tolerated, and quite often supported by the Lebanese Government (which, in the past, has even seen fit to decorate Hezbollah fighters for their bravery in executing terrorist attacks against Israelis). While perhaps not a formal security organ of the Lebanese State, Hezbollah definitely enjoys the legitimacy and acceptance generally reserved for such national forces. Is this enough in order to make military operations aimed at Hezbollah a "war?" Or could the current conflict be deemed a "war" only if Israel actually identifies Lebanon itself as the enemy, rather than Hezbollah?
Over the last three decades, international law has chosen to adopt the term "armed conflict" as a wider alternative to "war." Nevertheless, this change of terminology still leaves many questions without a definitive answer. (Can there be a state of 'armed conflict' between a state and a terrorist organization?) In addition, the term "armed conflict" appears to lack the same powerful intuitive moral impact generally associated with the concept of 'war.'
Is Hezbollah an army, a militia, a guerilla group or a terrorist organization? In spite of several recent attempts, international law has so far been unsuccessful in developing an accepted international definition of a terrorist.
The concept of the "guerilla fighter," as a distinct status from that of either the terrorist or the soldier, has yet to gain a foothold in modern international law.
Hezbollah employs military hardware, its members often wear a distinctive uniform, and it has established numerous military-style bases throughout Lebanon. And yet - Hezbollah is not an official arm of the Lebanese State, and it has shown repeated disregard for the principles of international law applicable to armed forces. How then should Hezbollah be classified? Are Hezbollah members terrorists, to be arrested and tried for their terrorist crimes (as has been Israeli practice for many years)? Or should they instead be viewed as enemy-soldier equivalents, to be placed in POW camps until the end of hostilities?
International law, by its nature, is hard pressed to give immediate, clear, and direct answers to these and other pressing questions, preferring to remain at the abstract level of principle. As a result, specific answers will be usually developed, if at all, only ex post factum, once the fires of conflict have died down. Then – strategies, tactics, and methods developed in haste, in the heat of battle, will be scrutinized dispassionately by "objective experts" with the aid of perfect hindsight. Any resultant insights will be further elaborated upon and discussed at length in academic circles, probably only to raise another long list of unanswered questions, waiting for the next conflict.
In the meantime, lacking clear international legal guidance, countries such as Israel have no alternative but to generate their own real-time answers to such questions, based upon their subjective understanding of the applicable legal principles, and guided by the unique historical-moral compass which forms the basis of the Democratic Jewish State.