Unity in the United Nations through Natural Law in the Battle against International Terrorism

Excerpt from Thesis Sec. III. Important Issues, (D) The Response

Military Response against Non-State Actors and Their Hosts under Humanitarian International Law - with a Note on 2007 Israel-Hezbollah War

LL. M. Thesis by Alexander Levkovich, June 2008 George Washington University Law School

Table of Contents

I. Military Response against Non-State Actors and Their Hosts under

Humanitarian International Law 2 2 7 7 10 14

(A.) (B.) (1.) (2.) (3.)

19

Attacking Non-State Actors Attacking the Host State Because of Non-State Actor Actions Current Status of Attribution Laws Full Attribution for Harboring State Partial Attribution for Harboring State

Note on The Unique Nature of the Israel-Hezbollah War

I. Military Response against Non-State Actors and Their Hosts under

Humanitarian International Law Prior to the emergence of the terrorism threat to international peace and security, the ability to violate another states sovereignty in order to defend against nonstate actors required attribution of their acts to that state.1 This required that the state exercise a certain level of control over the aggressive actions of the non-state actor in order to legally justify under international law the recourse to force against that state.2 In modern jurisprudence, the emergence of non-state actors, operating independent of states and capable of inflicting damage to the same extent, changes the dynamic for a state in deciding how to respond in defense of their security. There are two separate areas of application that must be addressed by international law to help define the limits of action by a victim state: first is the permissibility to directly attack elements of the non-state actor operating in a foreign land; second, are the conditions under which attacking the host state itself becomes permissible.

(A.)

Attacking Non-State Actors

In the previous section, the applicability of Article 51 to non-state actors has been established from the position of the concept of an armed attack applying also to non-states. There is sufficient consensus in state practice and opinio juris to suggest that this is accepted under customary international law.3 Given this reality, the burden then shifts to the defending state that has just been subjected to an armed attack to determine how best to exercise its right of self-defense. Because the host state is not directly responsible for the armed attack, this creates a clash between two fundamental principles in international law: the territorial integrity of the host state and the right to self-defense of the defending state. In turn, given this challenge to the right of self defense, this necessitates a clarification of the right and its scope of permitted behavior for the defending state. This section will highlight the emergence of this confrontation of principles, and will demonstrate how through their reconciliation, the right of self-defense emerges as a
1

Alexander Levkovich, Unity in the United Nations through Natural Law in the Battle against International Terrorism, section III(D)(2) (June 2008) (LL.M. thesis, George Washington University Law School) (on file with author). 2 Id. 3 See id. at section III(B)(1).

clear guide for states dealing with the emerging threats from non-state actors.4 First, it will be demonstrated how, through the progressive evolution of UN resolutions addressing the right to attack non-state actors, the permission to respond clearly evolves parallel to the emergence of the terrorist threat. Further, persuasive authority in conjunction with recent state practice will confirm the strengthened survival of the right of self-defense. Finally, from an analytical viewpoint, the ability for self-defense to overcome another states territorial integrity will be demonstrated as logically superior. A brief overview of certain UN Resolutions that bring to light the friction between the right of self-defense and territorial integrity reveals a pattern that begins with a complete submission of the former to the latter, and concludes with the emergence of self-defense as superior. In 1968, an Israeli attack on the Beirut airport in response to a violent attack two days earlier by a terrorist organization against an Israeli El Al airline at the Athens airport was unanimously condemned by the UNSC.5 This clearly indicated the inferiority of the right of self-defense. Later on, in 1982, Israel made a full-scale invasion of Southern Lebanon, claiming that Lebanon had lost much of its sovereignty over its own territory to the terrorist PLO6 and had failed to discharge a legal duty to prevent its territory from being used for terrorist attacks against other states.7 A series of resolutions throughout the year generally asked that Israel withdraw all its forces forthwith,8 expressed alarm at Israels acts of aggression,9 and reaffirmed the fundamental principles of Lebanese sovereignty, territorial integrity, unity, and political independence.10 Although this clearly manifested the superiority of the Lebanese right to territorial integrity, a final resolution from the General Assembly in mid-December that unanimously called for the restoration of the exclusive authority of the Lebanese
4

See Allen S. Weiner, The Use Of Force And Contemporary Security Threats: Old Medicine For New Ills?, 59 STAN. L. REV. 415 (explaining how a clear rule would remove the tension between territorial integrity and right of self defense). 5 S.C. Res. 262, U.N. Doc. S/RES/262 (December 31, 1968) (emphasis added). 6 See THOMAS M. FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACKS 57 n. 20 (Cambridge University Press 2004) (quoting S.C.O.R. (XXXVII), 2331 Meeting, 23 February 1982, at 5, paras. 46, 49). 7 Id. at n. 21 (quoting S/15132, Letter dated 27 May 1982 from the representative of Israel to the Secretary General). 8 Id. at 58 n. 21 (quoting S.C. Res. 509, U.N. Doc. S/RES/509 (June 6, 1982)); see also id. at 59 n. 31 (citing G.A. Res. ES-7/5, U.N. Doc. A/RES/ES-7/5 (June 26, 1982)). 9 Id. 10 Id.

State throughout its territory up to the internationally recognized boundaries,11 also took note of the decision of the Lebanese Government to expel all PLO forces from its territory.12 Thomas Franck suggests that by at least implicitly indicating that the presence of PLO bases in Southern Lebanon as a basis for the occupation, the United Nations had taken note of Israels right to defend itself from attacks originating from non-state actors operating from Lebanon.13 Even though there were resolutions afterwards that completely re-affirmed the superiority of territorial integrity over self-defense,14 the seeds were planted there by the United States referral to the applicability of Article 51 in these circumstances.15 The superiority of the right of defense finally emerged as a result of the growing ability of non-state actors to conduct armed attacks, as highlighted in UNSC Resolutions 1368, 1373, and 1701.16 This re-establishing of the right of selfdefense as above territorial integrity can be advocated as customary international law based on the increasing support this principle has received.17 Moreover, the
11

Id. at n. 34 (quoting G.A. Res 37/123, E, U.N. Doc. A/RES/37/123 (December 16, 1982)). Only Israel and the U.S. opposed the resolution. Id. 12 Id. at n. 30 (citing 1982 U.N.Y.B. 452). 13 Id. at 59. 14 In 1985, after terrorist attacks by the PLO, Israel retaliated by bombing its headquarters in Tunisia. The Security Council passed a resolution stating that it [condemned] vigorously the act of armed aggression perpetrated by Israel against Tunisian territory. See Weiner, supra note 4, at 435 n. 73 (citing S.C. Res. 573, 1, U.N. Doc. S/RES/573 (October 4, 1985)). 15 The resolution was adopted by a vote of 14-0 with the U.S. abstaining. The U.S. Permanent Representative to the United Nations explained that [we] recognize and strongly support the principle that a State subjected to continuing terrorist attacks may respond with appropriate use of force to defend itself against further attacks. This is an aspect of the inherent right of self defense recognized in the Charter of the United Nations. Id. (emphasis added) (quoting U.N. SCOR, 40th Sess., 2615th mtg. at 22, U.N. Doc. S/PV. 2615 (Oct. 4, 1985)). 16 See infra section I(B)(1) and accompanying text explaining the three distinct relations between a host state and a non-state actor ((1) the host is enabling the activities of the guest below the overall control standard and is unwilling to control it; (2) the host is permitting the use of its territory and unwilling to confront the guest; (3) the host is unable to control the activities of the guest). 17 A special situation arises where a State is incapable of impeding acts of terrorism committed by those making use of its territory. Even if these acts are not attributable to the State, the State victim is not precluded from reacting by military means against the terrorists. See 1 THE CHARTER OF THE UNITED NATIONS A COMMENTARY, 802, para. 36 (B. Simma ed., 2d ed. 2002) [hereinafter Simma, COMMENTARY ON UNC]; see also Armed Activities on the Territory of the Congo (Dep. Rep.Congo v. Uganda), Merits, 2005 I.C.J REP. 116, para. 37 (2005) [hereinafter Congo Decision] (Separate Opinion of Judge Kateka). For purposes of defending against an armed attack, the State acting in self defense is allowed to trespass on foreign territory, even when the attack cannot be attributed to the state from whose territory it is proceeding. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF DEFENSE 216 (3d ed., Cambridge University Press 2001). The U.S. view is that the States right to self defense is not overridden by another states territorial integrity from which the terrorists are operating. See Weiner, supra note 4, at 442; see also Ruth Wedgwood, Responding to Terrorism: The Strikes Against bin Laden, 24 YALE J. INTL L. 559, 565 (1999) (arguing that the United States had the right to attack Al Qaeda facilities in Sudan and Afghanistan following the 1998 East Africa Embassy Bombings; where a country permits the use of its territory as a staging area for terrorist attacks, the territorial state cannot expect to insulate its territory against measures of self-defense).

international silence to state actions over the past few decades confirms the emergence of this principle in practice under legitimate circumstances.18 Finally, if the theoretical justification for the application of traditional laws of selfdefense to inter-state conflicts is extended to extra-state conflicts, this further confirms the superiority of the right of self-defense. For example, say two states are involved in a conflict, where Oceana is the aggressor and Britania is the other reacting in self-defense. In such a case, Britanias right of self-defense is pinned directly against Oceanas territorial integrity interest, and international customary law clearly dictates the dominance of Britanias rights. The resulting question is why does the self-defense interest of Britinia override the territorial integrity of Oceana? The answer is that it is either as a means of preserving Britinias survival through its inherent right of self-defense, or as a means of punishing Oceana for being the aggressor.19 If the first possibility is accepted, it clearly advocates for the right of self defense to apply to non-state actors operating within innocent states. Since Britanias inherent right of self- defense allows it to overcome Oceanas territorial integrity, even if the self defense right is aroused by non-state actors, the territorial integrity is still inferior. However, if the second possibility is accepted, and the reason Britania can respond is because Oceanas culpability lessens its territorial integrity rights, then any right of self-defense action against a non-state actor would be dependent on the culpability of the host. Yet, if such a rule is to exist, then it serves as an obstacle to any type of effective battle versus international terrorist organizations. If they are permitted sanctuary in foreign lands by principles protecting sovereignty, states are blocked from legally pursuing greater interests of a global nature. Moreover, Glennon suggests that if a state attacked by a non-state actor is not allowed to
18

See Steven R. Ratner, Jud as Bellum and Jus in Bello After September 11, 96 AM. J. INTL L. 905, 910 (2002) (explaining how international silence to armed measures is highly significant as an indication of something from tolerance to embrace); see also FRANCK, supra note 6, at 95 (citing the bombing of Al Qaeda camps in Sudan); id. at 65 (highlighting that in the 1990s, Senegal invaded Guinea-Bissau, Thailand, conducted incursions into Burma, and Tajikistan pursued irregulars into Afghanistan); Weiner, supra note 4, at 442 n. 98 (referencing many instances where U.S. forces have been operating in foreign countries in pursuit of terrorists - Afghanistan, Yemen, Philippines, Republic of Georgia). Regarding Turkey fighting the PKK, see Jackson Diehl, A Friendship Revived, WALL ST. J. EUROPE, Jan. 15, 2008 ("Finally, on Nov. 5, [2007] President Bush met the Turkish prime minister at the White House and made a long-overdue decision: The U.S. would share tactical intelligence on the PKK with Turkey and tolerate attacks on Iraqi territory." ) available at http://online.wsj.com/article/SB120034472880889217.html? mod=googlenews_wsj (retrieved on Nov. 26, 2008). See also Turkey Hits PKK in Northern Iraq, CNN.COM, http://edition.cnn.com/2007/WORLD/europe/12/16/turkey.kurds/index.html (Dec. 17, 2007). 19 Really, it is a combination of both to an extent, but one would have to have more influence.

respond, its territorial integrity is violated by being forced to do nothing under international law.20 In sum, the inherent nature of the right of self-defense coupled with the demands of the modern realities of international threats to peace and security suggest the emergence of a rule that allows states to violate the territorial integrity and political independence21 of sovereign states when attacked by hostile non-state groups from their lands. This rule is focused strictly on responding against the nonstate groups themselves within the bounds of internationally recognized standards of necessity and proportionality, independent of the fact that they are operating inside another state. This principle reflects the preference to understand the theory of self-defense as more connected to alleviating the victim than punishing the aggressor. However, when the host does share culpability for the actions of the nonstate actor, it summons international rules that then exposes the host to response. The next section discusses issues raised regarding the culpability of states that host non-state actors conducting armed attacks.

(B.)

Attacking the Host State Because of Non-State Actor Actions

This section seeks to clarify to what extent an attacked state can defend itself using force against the host state, separate from its measures against the non-state actor. At its root, the answer depends mainly on the relationship between the nonstate actor and the host state, and to what extent the host contributed to the attack. From a legal standpoint, international customary law requires proper attribution of the acts of the non-state actor to the host in order for the host to be held equally culpable.22 However, a difficulty arises in finding a consensus on the current laws of legal attribution, considering the emergence of attacks both in quantity and quality stemming from non-state actors. Recent developments in international armed conflict have thrown the old attribution rules into disarray, and have warranted a reconsideration of the law. 23
20

See Michael J. Glennon, The Fog of War: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations, 25 HARV. J.L. & PUB. POLY 539, 550 (2002) [hereinafter Glennon, Fog of War]. 21 U.N. Charter art. 2, para. 4. 22 See infra section I(B)(1). 23 In view of the recent development of international terrorism, the rule [Attribution] is too sweeping. See Simma, COMMENTARY ON UNC, supra note 17, at 801, para. 33 (quoting Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 I.C.J REP. 14, 543 (1986) [hereinafter Nicaragua Decision] (Dissenting

Furthermore, it is highly feasible to have a situation where the legal threshold of attribution is not met, but the host state has still violated international law with its relationship to the non-state actor operating from its territory. There is very strong international customary law on the illegality of acquiescing to the presence of terrorist organizations in a countrys territory. Even if there is no legal attribution, it is still possible to have a partial attribution due to the illegality of the states behavior. In such a situation, factors such as the extent of the states culpability in respect to the law and the gravity of attacks made by the non-state actor all contribute to deciding how a victim state may respond.

(1.)

Current Status of Attribution Laws.

According to international customary law, legal attribution of the acts of a non-state actor to a host state is required in order to permit a victim state to resort to force against the host.24 The two traditional standards in opinio juris are the effective control test from the ICJ in Nicaragua, and the overall control test from ICTY in Tadic. 25 However, in practice, these standards are very difficult to meet and have received a lot of criticism because they prevent states from holding others responsible for large-scale armed attacks stemming from their territories. 26 This becomes increasingly critical in light of the emergence of threats posed by international terrorist networks that greatly depend on having bases of operation within other countries. Therefore, recent debate in opinio juris has focused on the creation of a more lenient standard for attribution harboring non-state actors which commands that greater pressure be placed on states to prevent the operations of terrorist groups on their shores.
Opinion of Judge Jennings)). 24 See id. at 800, para. 31 (citing Nicaragua Decision, supra note 23, at para. 195 (citation omitted) as reflecting international customary law). 25 See infra the Effective Control test from the ICJ in Nicaragua Decision, supra note 23, and the Overall Control test from ICTY in Prosecutor v. Tadic, No. IT-94-1-A, 38 I.L.M. 1518, para. 131 (1999) [hereinafter Tadic Appeal] available at http://www.un.org/icty/tadic/appeal/judgement/tad_aj990715e.pdf. 26 The threshold established in the Nicaragua case for attribution has been subject to increasingly severe criticism ever since it was established in 1986. See Stephen Mathias, Current Developments: The 2005 Judicial Activity of the International Court of Justice, 100 AM. J. INTL L. 629, 639 (2006) (quoting Congo Decision, supra note 17, para. 25 (Separate Opinion of Judge Kooijmans)); see also Simma, COMMENTARY ON UNC, supra note 17, at 801, para. 33 (stating that if the standards are interpreted strictly, then that would result in a reality where states are not adequately protected by Art. 51 from force committed by states in an indirect manner, and the very purpose of Art. 51 would be eroded).

Since the articulation of the effective control standard by the ICJ in Nicaragua,27 there has been a steady criticism of the approach that has led to its softening. This tough standard required the state to have operative control over all the relevant activities of the non-state groups, and they had to provide specific instructions on how to conduct their armed attacks.28 The first major reduction of the doctrine was in the 1999 ICTY case, Prosecutor v. Tadic, which introduced the overall control standard as an alternative. 29 It changed the required level of control from effective to a lesser standard of having a role in the different phases of military planning and acting. It also took away the requirement of having to provide instructions.30 Nevertheless, the gravity of the emerging threats posed by international terrorism has highlighted the deficiency of this standard in reasonably assigning culpability to host-states, and has led to the emergence of the harboring standard. Once the relationship between the host state and the non-state actor falls below the threshold established in the two standards above, it generally falls into the category of situations where the state is unwilling or unable to control its guest. The harboring standard that has been offered as a further extension of the attribution laws refers to only a portion of the types of interactions covered by the unwilling or unable criterion. Therefore, prior to defining the exact scope of the harboring standard, it is necessary to first clarify the different types of relationships within the unwilling and unable framework. Generally, they can be split into three distinct relations: (1) the host is enabling the activities of the guest below the overall control standard and is unwilling to control it; (2) the host is permitting the use of
27

The Nicaragua Court held the actions of Nicaragua contras could not be imputed to the U.S. because there were no specific instructions to them. Simma, COMMENTARY ON UNC, supra note 17, at 801, para. 32 (emphasis added) (quoting Nicaragua Decision, supra note 23, at 62-65, paras. 110-115). The ICJ ruled that simply supplying weapons or logistical support cannot be considered enough involvement to have the actions of the non-state actors attributed to the State. Id; see also Ratner, supra note 18, at 908. 28 The Nicaragua Court held the actions of Nicaragua contras could not be imputed to the U.S. because there were no specific instructions to them. Simma, COMMENTARY ON UNC, supra note 17, at 801, para. 32 (emphasis added) (quoting Nicaragua Decision, supra note 23, at 62-65, paras. 110-115). The ICJ ruled that simply supplying weapons or logistical support cannot be considered enough involvement to have the actions of the non-state actors attributed to the State. Id; see also Ratner, supra note 18, at 908. 29 See Tadic Appeal, supra note 25, para. 145 (holding that acts of the Bosnian Serb army could be imputed to Serbia because Serbia has exercised overall control over them). 30 The Appeals Chamber of the ICTY adopted a laxer standard based on overall control. This exists when a state has a role in organizing, coordinating, or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Id.at para. 137. It is not necessary under this standard for the sponsoring state to actually issue instructions in order for them to be held responsible for the acts of the Non-State groups. See generally Weiner, supra note 4, at 432 nn. 54-59.

its territory and unwilling to confront the guest;31 (3) the host is unable to control the activities of the guest. The harboring standard for the purposes of this discussion is to encompass the first two relations where the host affirmatively, either by action or by omission, allows the non-state actors to conduct operations from its territory.32 This theory has been labeled the Bush Doctrine and effectively imputes responsibility based on the toleration of such acts by the host.33 It includes situations where the host passively tolerates the presence of the non-state actors, without actively sponsoring them.34 It also implies that the host is capable of removing the non-state actor, or to some extent hindering its activities without inflicting substantial harm upon its own country.35 Harboring does not, however, include situations where the government can do very little to prevent the activities of the non-state actor.36 The question of whether harboring terrorist organizations is enough to attribute their acts to the host state is a question of the extent to which the host should be punished for its role in allowing the group to operate. On one end of the argument is the claim that the state is as guilty as the non-state actors. The other end, however, seeks to distinguish between complicity and imputation, and assign lesser blame to the complicit state actor than the one attributed with the attacks. Consequently, the former attributed or imputed state is exposed to comparable
31

There is a distinction between deliberately allowing groups access to the territory, and enabling groups to act against another state. See Oil Platforms (Iran v. U.S.), Merits, 2003 I.C.J REP. 161, para. 51 (2003) [hereinafter Oil Platforms]. 32 See S.C. Res. 1373 pmbl., U.N. Doc. S/RES/1373 (September 28, 2001) [hereinafter UNSC 1373] (Reaffirmingthat every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts.). 33 See Ratner, supra note 18, at 908 (emphasis added). 34 See UNSC 1373, supra note 32, at pmbl. This traditionally has been outside the scope of the attribution doctrine. See DINSTEIN, supra note 17, at 213. 35 Compare Pakistan Tribesmen Fight Taliban, Al Qaeda, CBSNEWS.COM (Oct. 13, 2008) http://www.cbsnews.com/stories/2008/10/13/terror/main4516621.shtml (case of Pakistan fighting Al Qaeda) with State Sponsor: Syria, COUNCIL ON FOREIGN RELATIONS, intro., available at http://www.cfr.org/publication/9368/ (updated Feb. 2008) (Syria continues to be categorized as a state sponsor of terrorism, since its first designation in 1979. According to the State Department, Syrias government supports U.S.-listed terrorist groups and allows some of these organizations such as Hamas and Palestinian Islamic Jihad to maintain headquarters in Damascus. The 2006 State Department Country Report says the Syrian government remains an active supporter of Hezbollah and has a covert presence in Lebanese politics.). 36 See Simma, COMMENTARY ON UNC, supra note 17, at 802, para. 36 (explaining that a special situation arises when a State is incapable of impeding acts of terrorism committed by those making use of its territory); see also Ben N. Dunlap, State Failure and the Use of Force in the Age of Global Terror, 27 B.C. INT'L & COMP. L. REV. 453, 458-59 (2004) (discussing the situation where the Government has lost effective control of its territory or is a failed state (emphasis added)).

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defensive action as the non-state actor, and the latter complicit or partially attributed state would warrant a lesser response under international law. This leads to two issues to be discussed in turn: first, under customary international law can states harboring terrorists be attributed with their attacks; and second, if they cannot, does Article 51 or customary international law permit the use of force against the partially-attributed state?

(2.)

Full Attribution For Harboring State

The Bush Doctrine is in part an assertion that nations harboring terrorists are as guilty as the terrorists themselves.37 This is supported persuasively by SC Res. 1368, which stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable;38 Moreover, SC Res. 1373 recognizes, as customary international law, the principle that every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another state or acquiescing in organized activities within its territory directed towards the commission of such acts.39 The issue that requires clarification is whether being held accountable in violation of the duty to refrain from acquiescing in organized activities of [terrorist organizations] warrants full attribution. This position has been advocated initially by the U.S. Government after 9/11 as a reflection of what it felt was necessary for international law to combat this new world threat, and was supported through the acts and statements of countless states worldwide in addition to the UNSC resolutions above.40 The Bush Doctrine states that any nation that continues to harbor or support terrorists will be regarded by the United States as a hostile regime.41 U.S. 2002 National Security
37

Benjamin Langille, Its Instant Custom: How the Bush Doctrine Became Law After The Terrorist Attacks of September 11, 2001, 27 B.C. INTL & COMP. L. REV. 154, n. 3 (2003). 38 See S.C. Res. 1368, 3, U.N. Doc. S/RES/1368 (September 12, 2001) [hereinafter UNSC 1368]. 39 See UNSC 1373, supra note 32, at pmbl. The Resolution prefaced the articulation of the principle with clear intent to demonstrate its binding legal value. Id. (Reaffirming the principle established by the General Assembly in its declaration of October 1970 (Resolution 1189 (XXV)) and reiterated by the Security Council in its resolution 1189 (1998) of 13 August 1998, namely that every State has the duty[see text quoted above]. (emphasis added)). 40 See Langille, supra note 37, at 145 n. 5 (quoting America Responds, THE WHITE HOUSE (Sept. 2001), http://www.whitehouse.gov/news/releases/2001/09/resources.html) (last visited Nov. 29, 2001) (saying how this was in conjunction with greater support for the war on terrorism generally). 41 President George Bush, Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11, 2 PUB. PAPERS 1140, 1141 (Sept. 20, 2001) [hereinafter Bush September 20th

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Strategy claimed that the U.S. will disrupt and destroy terrorist organizations in part by destroying sanctuary to terrorists by convincing or compelling states to accept their sovereign responsibilities.42 Also, in a 2003 speech, the then director of the State Department Policy Planning Staff argued that force could be used against states that harbor terrorists in their territories.43 In addition to the American support for this standard, the UNSC has articulated very comprehensive guidelines for states in combating terrorist organizations that suggest that force can be used. It has articulated all the different obligations States have toward suppressing terrorist activities. In relevant part, it commends that States shall: (a) refrain from providing any support, active or passive , (c) deny safe havens, and (d) prevent those [terrorist groups] from using their respective territories.....44 Pointedly, it also states in (c) that there is a duty to deny safe havens to those who provide safe havens, which is an exact microcosm of the case here, where states are seeking to prevent other states from providing safe havens.45 This reflects the idea that the host should also be fair game because the wrongdoers capability to do harm depends on the indifference of the host, which can simply withdraw its hospitality. Two other practical factors that contribute to imputing greater responsibility to the host state are the international disrepute of the specific non-state actor involved and the potential for large-scale destructions stemming from them. Schachter suggests that, when dealing with international terrorists which are universally condemned and provided some type of support from states, which should be a factor in determining a states culpability.46 Also, defending states are given greater leeway in assigning blame to host states because of the gravity of the
Address]. 42 See NATIONAL SECURITY STRATEGY September 2002, at 6 available at http://georgewbushwhitehouse.archives.gov/nsc/nss/2002/ (Sept. 2002) (emphasis added). 43 Richard N. Haass, Dir., Policy Planning Staff, U.S. Dept of State, Sovereignty: Existing Rights, Evolving Responsibilities, Remarks at Georgetown University (Jan. 14, 2003) available at http://www.state.gov/s/p/rem/2003/16648.htm. 44 See UNSC 1373, supra note 32, para. 2. 45 See Simma, COMMENTARY ON UNC, supra note 17, at 802, para. 33 (stating that offering a safe haven for groups after they have conducted attacks cannot be considered different from sending on behalf under the effective control standard); see also id. at 799, para. 29 (quoting Definition of Aggression, supra note 27, at art. 3(e)) (stating that allowing the use of territory by another state to perpetuate an act of aggression against a third state can also be considered aggression. Such aggression must reach the level of an armed attack and that permission to use the territory is voluntary rather than a neglect to prevent the use of territory). 46 See Oscar Schachter, The Lawful Use of Force By a State Against Terrorists In Another Country, in ISRAEL YEARBOOK ON HUMAN RIGHTS, 218 (Vol 19. 1989) [hereinafter Schachter, Lawful Use of Force].

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potential attack and the general international inability to address the current challenges of transnational terrorist networks.47 Both of these realities, in conjunction with the opinio juris above suggest that harboring non-state actors that are regarded as terrorist organizations can result in the attribution of their attacks to the host. On the other hand, the ability for defensive measures in response to an armed attack to legally affect those other than just theattacker is a disputed point.48 This is based on the theoretical distinction made between complicity, in which one actor can be held responsible for aiding and abetting in the others illegal act, with knowledge of anothers actions, and imputation of direct responsibility.49 Applied to the issue at hand, this approach implies that use of force would not be justified against a host state absent proof of something more culpable than harboring.50 This standard would then certainly exclude the second level of the unwilling and unable framework from being included under legal attribution.51 This need to distinguish the level of culpability for the harboring state from that of the actual aggressor within its land has support in authoritative pronouncements,52 and from commentators that distinguish the two factors.53 Further clarity of the acceptance of harboring as a legal pre-requisite to attribution can be found in a brief analysis of the American response to 9/11 against
47

See id. (explaining that the scale and effects of the attack can make state attribution more likely); see also Ratner, supra note 18, at 920 (explaining that as a result of these factors, orthodox view of state responsibility has effectively vanished). 48 Simma, COMMENTARY ON UNC, supra note 17, at 799, para. 28 n. 109. 49 See Ratner, supra note 18, at 908. 50 Id. at 908-909. 51 See supra text accompanying note 16 for a discussion of the three levels within the unwilling and unable to control relationship between host and non-state actor. 52 See Ratner, supra note 18, at 909 n. 29 (specifically highlighting the use of the terminology complicit in as opposed to responsible for in Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism, pmbl., para. 3, OAS Res. RC.23/RES.1/01 (Sept. 21, 2001), reprinted in 40 I.L.M. 1270 (2001) (where the Organization of American States adopted a resolution recognizing the inherent right of individual and collective self-defense in accordance with the [OAS and UN] Charters, and stating that those responsible for aiding, supporting, or harboring the perpetrators of [the September 11 attacks] are equally complicit in these acts. (emphasis added))). 53 See DINSTEIN, supra note 17, at 215 (In such a case the host state is in breach of its international obligation, but not guilty of an attributed armed attack.); see also Weiner, supra note 4, at 434 nn. 65-66 (When states violate this rule against harboring terrorists, they violate international customary law. Yet, that is distinct from the violent acts carried out by the terrorists themselves, which may give rise to permissible self defense for the attacked state.); see also id. n. 67 (quoting Letter from U.S. Secretary of State to Professor Eugene Rostow (May 29, 1974), reprinted in Arthur W. Rovine, Contemporary Practice of the United States Relating to International Law, 68 AM. J. INTL L. 720, 736 (1974) (where the U.S expressed the position of that the breach by the harboring state was only of an obligation to prevent the presence of the terrorists on its territory, not the Article 2(4) violation by the terrorist organization)).

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the Taliban regime. There is consensus that the decision to specifically attack the Taliban, separate from Al-Qaeda, was unlawful under the accepted attribution standards at the time.54 Even though Al Qaeda was not dependent on the Taliban for financing or supplies, the Taliban was still severely punished for its ideological kinship with Al Qaeda, and for allowing it to use Afghan territory.55 The position of the United States was that this relationship was enough to attribute the 9/11 attacks to the Taliban and sufficient use force reason under Article 51 against it. Even if the U.S. and NATO decision to attribute the acts to the Taliban can be deemed exceptionary, and not indicative of an adjustment to the attribution doctrine, the Necessity Doctrine would legitimately support attacking the Taliban in this case. It is undisputed that Al Qaeda is a lethal terrorist organization with a wellknown disposition of war toward the United States. Further, given this reality, it then becomes critical and necessary to prevent it from having any safe base of operations. Since the Taliban regime made it clear that it would vigorously oppose any foreign forces entering its territory to root out Al Qaida bases, it is difficult to see how there was an alternative to the overthrow of the Taliban regime in order to succeed in its aims of removing Al Qaida from Afghanistan.56 In sum, the United States decision to attack the Taliban and remove it from power was accepted as legitimate under the circumstances. From a legal standpoint, it may have either confirmed the expansion of the attribution doctrine to include harboring states that host terrorist organizations, or was an exceptional situation that did not affect the rule. Either way, the legitimacy of the US actions is not disputed, and that is evidence of the potential creation of customary international law as an expansion of the attribution doctrine. Alternatively, if the law it interpreted did not expand the attribution threshold, then these facts support allowing some type of force when there is partial attribution.

(3.)

Partial Attribution for Harboring State

54

See Glennon, Fog of War, supra note 20, at 544 (stating that use of force against the Taliban government after 9/11 under the definition of armed attack was unlawful because it did not meet the requirements of attribution as articulated in the Nicaragua case); see also Weiner, supra note 4, at 432-33 (stating that it is difficult to attribute to Afghanistan the acts of Al Qaeda on 9/11 under even the most lenient theory of attribution). 55 See id.at nn. 61, 62. 56 See Christopher Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan, Al-Queda, and Iraq, 4 SAN DIEGO INTL L.J. 7, 25 (2003).

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If the status of the law of attribution does not include states that harbor terrorists, then that causes an emergence of a partial-attribution doctrine, which dictates the extent to which states violating their international responsibilities can be held accountable for actions of non-state actors inside their lands. There have appeared two separate possible modifications to the use of force laws, besides the expansion of the attribution standard above, 57 that reflect the need to influence states to prevent terrorist-related activities on their shores.58 The first is to expand the concept of vicarious liability independent of traditional attribution doctrines to hold host states responsible.59 The second is to accept forcible reprisals as lawful in cases where the host state breaches its obligation not to acquiesce to terrorist activities.60 These concepts all reflect the need to clarify the scope of the Partial Attribution Doctrine, and their emergence in academic writing supports the need to do so. The need to articulate a functional legal framework that punishes states for internationally illegal behavior in their relationship with terrorist organizations can be fulfilled by the partial attribution doctrine. It is based on the premise that even if the strict attribution standards are not met, states can still be held responsible for neglecting their international legal responsibilities. A state has a specific duty not to tolerate the preparation in its territory of actions which are directed against a foreign Government or which might endanger the latters security, which, if not met, assigns responsibility to the state for the wrongful omission.61 All the requirements, as articulated listed in UN Res. 1373 and other opinio juris, for a state not to harbor terrorist organization, are an extension of its obligation to preserve

57

Weiner, supra note 4, at 445 n. 113 (citing, e.g., Davis Brown, Use of Force Against Terrorism After September 11th: State Responsibility, Self-Defense and Other Responses, 11 CARDOZO J. INTL & COMP. L. 1, 13-17 (2003); Joshua E. Kastenberg, The Use of Conventional International Law in Combating Terrorism: A Maginot Line for Modern Civilization Employing the Principles of Anticipatory Self-Defense & Preemption, 55 A.F. L. REV. 87, 124 (2004) (arguing that states guilty of aiding and abetting terrorist organizations forfeit their international law protection against the use of force)). 58 Weiner, supra note 4, at 445. 59 Id. at n. 114 (citing, e.g., Jack M. Beard, Americas New War on Terror: The Case for Self-Defense Under International Law, 25 HARV. J. L. & PUB POLY 559, 581-82 (2001) (While a state may have once argued that the actions of terrorist organizations did not impose responsibility on the state under Article 2(4) of the U.N. Charter and did not subject them to forcible measures in response under Article 51, those conditions no longer appear to pertain)). 60 Id. at n. 115 (citing, e.g., Kastenberg, supra note 57, at 125 (arguing that a state that grants terrorist groups safe haven or offers other support may be subject to military attack)). 61 Ago, R., Fourth Report on State Responsibility, [1972] II INTL L. COMMN, YBK. 71, 120.

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the security of its neighbors.62 Therefore, when a state gets attacked by a non-state actor from a host state, and the host has violated its obligations to try to prevent the attacks, then the victim state should legitimately be entitled to respond directly to the host in some capacity. The extent to which a victim can respond to attacks from non-state actors partially attributed to the host depends on two general factors: (1) the nature of the nonstate actor, and (2) the relationship between the host state and the non-state actor. The greater the illegality of the non-state actor and the danger it poses, the greater the responsibility of the host state to uphold its obligations. Moreover, the greater control a state has over the activities of the non-state actor, the greater their culpability should be. The latter standard is determined by the states knowledge of the activities, and its capability to prevent terrorist operations on its soil. If the non-state actor that conducts attacks is a well-know terrorist organization, then that creates much greater obligations on host states to prevent its activities.63 International terrorism has been condemned as a crime under international customary law.64 The recognition of the seriousness of this behavior must be taken as an obligation on all States to take appropriate measures to prevent acts of international terrorism.65 Moreover, under the 1954 Draft Code of Offences against the Peace and Security of Mankind, the actual support given to terrorist organizations can be considered an international crime. 66 These standards increase

62 63

See UNSC 1373, supra note 32. Schachter, Lawful Use of Force, supra note 46, at 218 (stating that the scale and effects of the attack can make state attribution more likely, and the disrepute of international terrorism is a factor in scale and effects.). 64 See id. at 211 (quoting G.A. Res 40/61, U.N. Doc. A/RES/40/61 (December 9, 1985)) (clarifying it to be a unanimous UN General Assembly Resolution that condemns as criminal all acts, methods and practices of terrorism wherever and whenever committed); see also A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges, and Changes, A/59/565, 47, para. 145 (December 1, 2004) [hereinafter High Level Panel Report] available at http://www.un.org/secureworld (Terrorism attacks the values that lie at the heart of the Charter of the United Nations: respect for human rights; the rule of law; rules of war that protect civilians; tolerance among peoples and nations; and the peaceful resolution of conflict.). 65 See Schachter, Lawful Use of Force, supra note 46, at 211; see also I. Brownlie, International Law and the Activities of Armed Bands, 7 INTL & COMP. L. Q. 712, 734 (1958) (explaining that states should not permit their territories as staging grounds for non-state actors to attack other states and that it is irrefutable that such tolerance by a state is unlawful); Concerning United States Diplomatic and Consular Staff in Tehran (U.S v. Iran), Merits, 1980 I.C.J REP. 3, 32-33, 44 (1980) [hereinafter U.S. Consular Staff in Tehran] (where the ICJ held in the Tehran case in 1980 that if one State is required under international law to protect the interests of another and they have the means at their disposal and they completely fail to comply with their obligations, the inactive state bears international responsibility towards the other state). 66 Report of the International Law Commission, 6th Session, [1954] II INTL L. COMMN, YBK. 140, 151 (Article 2(4)).

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the obligation of States to prevent activities of non-state actors on their territory when the groups are international terrorist organizations. Given the greater expectation of States when the groups in their territories are considered internationally illegal, assigning culpability to the States still requires some type of relationship between the State and group. The applicable standard is two-faceted where, first, a State must not knowingly [allow] its territory to be used for acts contrary to the rights of other states, 67 and second, it should have means at its disposal to protect the interests of the other state.68 This means that a State must have knowledge of the activities that it is obligated to prevent, since it is possible that it may be unaware of what is happening inside its borders, especially when the non-state actor operates in remote and densely populated areas.69 Also, where the host state does not condone, but is too weak militarily, politically, or otherwise to prevent these operations, its responsibility is nominal.70 Essentially, the extent to which a host state is attributed to the acts of a non-state actor in its territory depends on the overall illegality of the behavior of the state harboring the group. The illegality is increased when the group is a terrorist organization, and even further increased if the group has already engaged in attacks. Also, the illegality is augmented by the increase in potential damage that an attack stemming from this non-state actor can cause to another country. Moreover, the greater the ability of the state to hinder the activities of the group, the greater the illegality of its omission to do so.71 Yet, if a state is unable to cause a change in the behavior of the non-state actor, either because it does not know about the groups machinations or is incapable of stopping it that decreases the illegality and makes the state an innocent third party. The critical issue that emerges is at what point in the illegality of the host state it exposes itself to the use of force from the victim state. The answer depends on the specific facts and circumstances of each case and how states weigh the factors outlined above.

67 68

The Corfu ChannelCase (United Kingdom v. Albania), Merits, 1949 I.C.J. REP. 4, 22 (1949). U.S. Consular Staff in Tehran, supra note 65. For example, a relationship where the Government can do very little to prevent the activities of the NSA is where it is ideologically and politically against the NSA, and the governments armed forces are in active armed conflict with the NSA. Weiner, supra note 4, at 434. 69 See DINSTEIN, supra note 17, at 215. 70 Id. 71 See, e.g., Glennon, Fog of War, supra note 20, at 544 (stating that there was not attribution, but the U.S. is allowed to overthrow them because of their omission to prevent a group like Al Qaida from operating in their lands).

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In sum, separate from permissible responses directly against assets of the non-state actors, there exists legal justification for responding directly against the host state. This can be done under the legal guidelines of full attribution, or under the proposed partial attribution doctrine. The current debate in international jurisprudence is focused on whether the attribution laws can be expanded to encompass situations in whichstates are harboring terrorist organizations. If not, then to what extent can the harboring state be punished if they are partially attributed with armed attacks, or more pointedly, can the attacked state respond with the use of force? Conventional wisdom may suggest that if there is full attribution, then armed force can be used, and if there is only partial attribution then only alternative means are permitted. Therefore, the standard for attribution would need to reflect all situations where a state may reasonably be permitted to use force. Since American use of force against the Taliban was widely perceived as legitimate, that would suggest the acceptance of harboring terrorist organizations as legal attribution. On the other hand, it may be said that harboring remains only enough of a connection for partial attribution, and the use of force is permitted under certain facts. This then forces a distinction between the permitted use of force under full attribution and under partial attribution. To make such a conceptual separation would require detailed analysis of military tactics, and is more complicated than to decide the necessary relationship boundaries for full attribution. It would be simpler to conclude that states harboring terrorist group can be subject to armed response in self defense within boundaries of proportionality and necessity thereby more reasonably fitting under a full attribution standard. Therefore, if American actions against the Taliban and the international response are accepted as altering the status of the law, harboring may be considered to permit the full attribution to the host. It is important to stress that this conclusion assumes that the generally accepted legitimacy of the American actions is enough to label it legal. If it does not change the legality, and the response is perhaps considered as exceptionary under the necessity doctrine or mitigated because of extraordinary circumstances, then harboring remains outside the scope of legal attribution, and partial attribution does not permit use of force. This highlights the encompassing role of necessity in customary international law, and its importance in potentially altering it. It also

18

leads to the next section of the thesis, which underscores the natural legal bearings of the necessity doctrine as reflective of a greater need to take account of natural law as a substitute to positivism in the contemporaneous development of the international legal framework governing the use of force.

Note on the Unique Nature of the Israel-Hezbollah War. The recent war between Israel and Hezbollah that occurred in the summer of

2006 was a unique situation that gives insight into how the partial-attribution doctrine can be applied in practice. Even though Hezbollah cannot be easily classified as a non-state actor, and does not comfortably fit into the partial attribution model established above, the facts of this war are still informative in creating a workable legal model for defending states operating against a host. An examination of this conflict bridges into a deeper understanding of the issues a state is faced with when deciding whether to attribute culpability to a host and to hold it accountable through armed force. The unique nature of Hezbollah prevents an unambiguous label. First, it is a fully independent organization with an independent autonomous power structure. It has an independent militia run by an executive authority that rivals the Lebanese army, and it has an independent treasury that funds numerous social services.72 All of this was established with specific ideological goals, and in furtherance of these aims, Hezbollah also operates as a powerful and influential political party within Lebanon, with significant popular support and influence on the masses. The emerging entity is a state-within-a-state that eludes clear legal understanding, and complicates the definition of what Lebanon is. Parallel to Hezbollahs reputation and status as an extremely ideological terrorist organization, it is fully integrated and influential in the political and social dynamic of Lebanon. It has officials in the legislative and executive branches. Moreover, it is fully involved in the social and business aspects of the society. Does this integration into the Lebanese structure make it de facto Lebanon? Is an Israeli response against its infrastructure deemed an Israeli attack against Lebanon? It is
72

See LEBANON: The many hands and faces of Hezbollah, U.N. OFFICE FOR THE COORDINATION OF HUMANITARIAN AFFAIRS (Mar. 3, 2006), available at http://www.irinnews.org/report.aspx?reportid=26242; see also Hezbollah's secret weapon, CNN.COM (Jul. 25, 2006) http://www.cnn.com/2006/WORLD/meast/07/24/schuster.hezbollah/index.html.

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informative to point out that the latest conflict was labeled Israel-Lebanon II rather than Israel-Hezbollah. In theory, Lebanon and Hezbollah are two separate entities: one is an ambitious attempt at a democratic state, and the other is a terrorist non-state actor. Yet, in practice, the latter is fully integrated into the former. Moreover, this analysis is further complicated by the great disunity within Lebanon, which highlights other aspects in identifying the definition of what Hezbollah is. Since there are many groups in Lebanon that are just as hostile to Hezbollah as is Israel, and since these groups consider Hezbollah to be outside the state, this separates them on a social level from the conception of Lebanon. At the same time, Hezbollah would not be able to garner the necessary influence in the country as it has if not for its popular support. In sum, it is not feasible to label Hezbollah completely as either a non-state actor or a state; rather, it is a unique combination of both. Since Hezbollah cannot be clearly defined as a non-state actor, the partial attribution of its culpability cannot be properly defined. Partial attribution analysis asks how guilty the host is for acts of the group operating within its land. To what extent does the disease of culpability infect the host with the responsibility to prevent? Attribution is the legal method of imposing guilt on a state as a whole for the acts of groups that are distinct from it. It assumes a clearly defined theoretical and actual separation between the state and the group. In this case, since Hezbollah is an entity that is a state-within-a-state, the concept of attribution does easily apply itself to this situation. Yet, if we assume otherwise, such a separation between the state and the group is not required. Consequently, all that would be needed is a group empowered with accountability for a certain piece of land, and another group operating inside of it in order to make a partial attribution analysis. The issue that emerges is what does it take to be empowered with accountability under these circumstances? What internal or external legitimizing event imposes on an entity the task of making sure the land it has control over should not be the origin of aggression against its neighbors? The logical answer is that the confirmation of statehood and the rights and responsibilities that are its offshoots are the events that impose potential liability on the host. Therefore, accountability is tied in with the sovereign scope of the state, and its operational reach. Thereby, if a state has

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legal sovereignty under international law over a certain geographic area, then it can be held accountable for aggressive behavior stemming from that piece of land. This analysis confirms the need for a clear distinction in theory and practice between the state and the non-state actor in order to apply the partial attribution doctrine. Critically, this prevents a clear application of partial attribution to these facts. Given the above, after an account of both the clear facts in this case and the expected behavior of the parties involved, it does not make sense to label Hezbollah a non-state actor. It is conceptually difficult to separate Hezbollah from Lebanon, because of its integration into their social, economic, and political structure.73 Moreover, from Israels standpoint, its legal posture in justifying the scope of its resort to force would be more smoothly presented if Israel argues that Hezbollah is not a non-state actor. Since such a position does have legitimate arguments supporting its chances of gaining approval in the international community. In this case, only a portion of the conceptual state Lebanon is not aligned with Hezbollah, and the other is Hezbollah itself. Consequently, the situation is a state charged with the task of preventing activities that a portion of itself is committing. Nevertheless, from a theoretical perspective, it would be useful to examine Israels use of force under these facts if Hezbollah is deemed a non-state actor. From such a conceptual background, a few insights can be gained into what the theoretical parameters of the partial attribution doctrine should be. In applying the framework for partial attribution established above, more clarity is found on the specific issues that need to be considered. Israels resort to force against numerous elements of the Lebanese infrastructure, and its legitimacy under international legal scrutiny provides some insight into what type of culpability is required for a host in order to be held accountable.74 The two elements requiring analysis are: (1) the nature of the nonstate actor, i.e. its illegality and potential to cause harm; and (2) the relationship of NSA to the host state.75 The first element helps to establish the legal responsibility of a state to prevent the operations of these groups within its boundaries, while the
73 74

See generally id. See generally S.C. Res. 1701, pmbl., U.N. Doc. S/RES/1701 (August 11, 2006). 75 See supra section I(B)(3).

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second element questions whether the host is able to fulfill, and has been fulfilling, this responsibility. In this case, the global reach and operational illegality of Hezbollah is not in dispute.76 This can therefore be said to trigger the highest possible obligation for the host state to hinder and disrupt the activities of the nonstate actor. That being established, the next step is to identify the ability of the host to influence the behavior of the group, taking into account what it will cost the state to do so. If the state has actual notice of the activities of terrorist organizations on its soil and has the means to obstruct their activities without significant harm to itself, then the states culpability and exposure to reprisal is clear. However, a very complicated situation emerges when there are circumstances similar to Lebanons, where the government is fully aware of the activities of the non-state actor but can only stop it by initiating what would amount to a civil war. In this case, the application of the partial-attribution doctrine is forced to weigh very acute state sovereignty issues against an attacked states right to self-defense. Is Israel permitted to attack imbedded aspects of Lebanese infrastructure that are also utilized by Hezbollah for its hostile activities as a response to an armed attack? In this war, in furtherance of its self defense, Israel attacked neighborhoods in Beirut, roads, bridges, and other Lebanese assets that were all logistically important for Hezbollah.77 Besides having the intended effect on Hezbollahs operational capability, these strikes also significantly affected the host state. The question is if this punishment inflicted on Lebanon is justified under these circumstances. Moreover, if it is justified, is it because it was an acceptable collateral consequence of Israels defense against Hezbollah, or because it was a permitted version of partial attribution where the host was being punished for its culpability in the activities of the non-state actor? This discussion mirrors the hypothetical discussion in the previous section of the conflict between Britania and Oceana, where the

76

The group is considered a terrorist organization by the United States, Israel, Canada, and the Netherlands. The United Kingdom has placed its military wing on its list of proscribed terrorist organizations, while Australia considers part of its military structure, the External Security Organization, a terrorist organization. See Wikipedia.com entry for Hezbollah, available at http://en.wikipedia.org/wiki/Hezbollah#cite_ref-CFR_3-1. 77 See Israel attacks Beirut Airport Again, INTL HERALD TRIB., Jul. 14, 2006, available at http://www.iht.com/articles/2006/07/14/news/web.0714lebanon.php (retrieved on Nov. 26, 2008) (Israel struck Beirut airport again on Friday and bombed Lebanese roads, power supplies and communication networks in a widening campaign after Hezbollah guerrillas seized two Israeli soldiers and killed eight.).

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permission to respond in self-defense was concluded to be justified because of the self-defense of the state, and not to punish the culpable party.78 The fact that the exact nature of Hezbollah cannot be pinpointed makes the analysis much more complicated. If Hezbollah is considered a quasi-state and a part of the conceptual Lebanon, that pre-empts this analysis completely. From Israels viewpoint, under this theory, it is not required to justify any type of attribution to Lebanon as a separate entity from Hezbollah, because Hezbollah is de facto Lebanon. Therefore, this is not a question of the legal limits of attribution, but rather, a more traditional jus ad bellum analysis of state-versus-state warfare. On the other hand, if Hezbollah is considered a non-state actor, then any response to its aggression against Lebanon, its host state, would awaken the conflicting issues of the hosts sovereignty versus the victims self-defense. If the attacks perpetrated on Lebanon by Israel as a response to the activities of Hezbollah are accepted as legal or legitimate, assuming the fact that the Lebanese government is an innocent third party, that suggests that all hosts are fair game so long as the targets for attack are sufficiently connected to the operations of the non-state actor. The difficulty arises in determining the legal boundaries of sufficiently connected to operations of the non-state actor when weighed against the actual collateral damage done to Lebanon. An in-depth analysis of this issue delves into concepts of necessity and proportionality in jus in bello, which is outside the scope of this paper. To conclude, the attempt to clarify the legal lessons learned from the IsraelHezbollah war highlights the complexity of the issues we are dealing with. The attempt to find a place for this conflict within the legal formula only functions on an abstract level. When these issues arise under the pressure of battle, decisions are not made with a primary goal of compliance with the international laws. Rather, the specific facts of each case are weighed both in the long-term and in the short-term based on the ethical and political inclinations of the decision maker. Then, only after the fact, do the legal advisors attempt to fit the decisions made into a package that is suitable for the international stage. Any realistic goal for the laws to influence state behavior should allow for the inclusion of considerations that touch upon these ethical and political factors.

78

See supra section I(A).

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***please note all endnotes are based on full version of thesis, which can be acquired by emailing alex.stuy@gmail.com or calling 718-407-0263

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