Israel in Lebanon
The Report of the International
Commission to enquire into reported
violations of International Law by
Israel during its invasion of the Lebanon
International Law and the Invasion of the Lebanon
The legal regulation of the resort to force has occupied the attention of states and publicists for the best part of this century. From the period at the beginning of this century when the international legal order considered recourse to war to be a matter of discretion, within the sovereign competence of a State, we have now arrived at a formal situatiop where customary international law and the system established under the Charter of the United Nations impose severe restraints on the extent to which a State may have recourse to force to settle disputes.
The principal restriction before the second world war on the undiluted right to war was that imposed by the Kellogg-Briand Pact, or the General Treaty for the Renunciation of War of 1928, where the High Contracting Parties declared ‘in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another’.
This treaty formed one of the bases of the prosecution of the Nazi war criminals at the Nuremberg Trials, as the Nazi war machine had embarked on an aggressive war, contrary to the provisions of the Pact. However, it was generally accepted, without express mention, that the pact permitted recourse to war in self-defence. In the Nuremberg Judgment, the Tribunal rejected the defence argument that Germany was the sole judge as to whether, under the Kellogg-Briand Pact, the occasion demanded preventive action and that Germany’s judgement was conclusive. The Tribunal laid down the important rule that ‘whether action taken under the claim of self-defence was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced. . .’
The Charter of the United Nations provided a more complete regulation of the use of force in inter-state relations, by removing the loopholes whereby States actually resorted to war without the formality of a declaration of war by embarking on ‘forcible measures short of war’, such as reprisals, intervention or ‘pacific’ blockades. These important provisions of the Charter are to be found in Article 2, paragraphs 2 and 3 of the Charter which, firstly, oblige States to settle all international disputes by peaceful means in such a manner that international peace and security and justice are not endangered and, secondly, impose the serious obligation on Member the classical international law, there can be no convincing justification for the invasion which began on 6 June. From the official reports of the Secretary-General of the United Nations, reviewing the work of UNIFIL in southern Lebanon – and not contradicted by any party – there was virtually total observance of the Habib-negotiated ceasefire of July 1981. There are no reported serious breaches of the ceasefire from the Lebanese side throughout this period. However, in April 1981 there was serious bombing of Beirut by Israel, which did not evoke a significant response by way of retaliation from the PLO.[l] In this period, four Israelis were killed and 21 injured but there was no evidence that this was due to PLO artillery from Lebanon or activities actually launched from Lebanon.
On occasions in the past, certain States have supported the idea that a reprisal could be justified, not because of a single illegal act but because of an ‘accumulation of events’, especially in relation to guerrilla activities where infiltration from a base or bases in another country is the pattern of activities. But the Security Council, as the competent body, has rejected such an approach on a number of occasions. In any event, Israel’s actions from the beginning of the invasion to the end of August 1982, when the siege of Beirut was lifted, were too extensive and widespread to be classified as a reprisal.
The next issue which has to be discussed in relation to Israel’s justification is the question of correspondence. Even if the occasion for self-defence exists, there is the legal rule which refers to the need for a correspondence between the original wrong and the necessity for a reaction by way of self