The Use and Abuse of Self-Defence in International Law: The Israel-Hezbollah Conflict as a Case Study

Abstract

In this working paper, the author undertakes an examination of Israel's conflict with Hezbollah last summer and questions whether it could be justified as an act of self-defence under international law. He argues that Israel's actions would more accurately be described as acts of aggression contrary to the purposes and principles of the UN Charter as they were offensive and punitive. The author further argues that even if Israel had invoked the "needle-prick" or "cumulative events" theory of self-defence, which it has done in the past and which has been considered on occasion by the ICJ, the actions of Israel's Armed Forces would still not be justified. Nor, for that matter, would Israel's actions in the Lebanon meet the Caroline test on the question of necessity, immanency and proportionality. International lawyers (and those they advise) should therefore take care to distinguish acts amounting to self-defence from acts of aggression because they are fundamentally distinct. In this respect, the customary international law principles of necessity and proportionality are a useful yardstick by which to assess whether a State's recourse to armed force is defensive or not. It will also be argued that the ICJ's dicta in the Nicaragua case that "a mere frontier incident" does not amount to an armed attack triggering the applicability of Article 51 of the UN Charter is a perfectly logical and reasonable interpretation of that provision.

Keywords: self-defence, Caroline, Hezbollah, aggression, armed attack, necessity, proportionality, UN Charter, Article 51, Nicaragua

JEL Classification: K33