Questions on Legality of Israeli Strikes in Iraq and Lebanon

(Published in Just Security, Sept. 9, 2019)

A flurry of news reports during the final week of August detailed recent Israeli air strikes against Iranian affiliated groups in Iraq, Lebanon, and Syria. The Washington Post published an Editorial questioning the wisdom of this Israeli policy, though typically, and regrettably, utterly neglected to consider issues of legality. It did repeat the media mantra that “Israel has a right to defend itself from Iranian attacks,” but then failed to examine whether any of the Israeli strikes had been responding to actual or imminent armed attacks. A New York Times analysis of the escalation similarly avoided the legal questions.

The short answer, based on publicly available evidence (discussed below), would be that the strikes were unlawful. Only one of the strikes on Syria was reportedly responding to an imminent attack, which should thus make for a very short analysis on the legality of the rest of the strikes. But a brief and somewhat disjointed exchange among some international law scholars on Twitter last week raised some questions and advanced some arguments (to the extent Twitter can sustain such a thing) that suggested a perhaps more complex and interesting analysis. I explore that line of analysis here.

Some Facts

First, a brief review of some of the facts. Israel carried out several air strikes in July and August in Syria, Iraq, and Lebanon. For simplicity I will leave the strikes in Syria aside for now, and focus on the strikes in Iraq and Lebanon, though it should be understood that Israeli representatives have argued that most of the strikes (or those that have been acknowledged by Israel) served the same broad purpose of preventing Iran from establishing a weapons supply line through Iraq and Northern Syria to Hezbollah in Lebanon.

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The Danger in Abe’s Constitutional Amendment Proposal

(Published in The Japan Times, Aug. 5, 2019)

Prime Minister Shinzo Abe has demanded that the Diet move forward with debating his Liberal Democratic Party’s proposal for amending Article 9 of the Constitution, with a view to possibly having a vote on the issue in 2020. Having failed to retain a two-thirds supermajority in the Upper House election on July 21, he will need to sway some members outside of his coalition to win approval of any such amendment, and thus the debate will be more meaningful, its consequences more significant.

Many observers will be struck by how modest the new amendment proposal seems, and thus may be lulled into thinking that there is little to fear from it. This is a grave mistake. Once analyzed in its broader context, the ramifications of the proposal look much more dangerous.

To begin, it will be recalled that Article 9 has two paragraphs. The first provides that Japan renounces war and the threat or use of force as sovereign rights of the nation. The second, which has been more controversial and far less effective, has two clauses: first, a prohibition on the maintenance of land, sea or air forces or other war potential; and second, a denial of the rights of belligerency. While many legal scholars view the existence and size of the Self-Defense Forces as being patently inconsistent with this provision, that is not the official view.

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Japan’s Dilemma in the Persian Gulf

(Published in Australian Institute of International Affairs: Australian Outlook, Jun. 26, 2019; re-published in Opinio Juris, Jul. 5, 2019)

In the wake of the recent attacks on shipping in the Persian Gulf, there has been considerable discussion about Europe’s difficult position amidst the escalating tension between the United States and Iran. There has been far less discussion of Japan’s situation. Yet one of the ships was Japanese-owned, and Prime Minister Shinzo Abe was in Tehran at the time of the attack, specifically trying to dampen those tensions. Nonetheless, Japan distanced itself from the American accusations of Iran’s role in quite surprising and uncharacteristic fashion.

Why was that? Like the EU, Japan appeared to be on the horns of a dilemma, but the nature of its dilemma seemed far less clear. One explanation may lie with the Japanese government’s 2014 so-called “reinterpretation” of the war-renouncing provision of the Constitution. The current situation in the Gulf dovetailed with that “reinterpretation” in manner that created a dilemma with huge risks for the government.

Japan’s Surprising Response to the Crisis

Most readers would be familiar with the increasing tensions between Iran and the United States, from the American withdrawal last year from the Joint Comprehensive Plan of Action (JCPOA), the American tightening of sanctions since then, through to the recent U.S. deployment of forces to the region, followed by the two separate attacks on tankers in the Gulf of Oman. This timeline is a good refresher.

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Challenging and Refining the “Unwilling or Unable” Doctrine

My latest law review article has just been published: “Challenging and Refining the ‘Unwilling or Unable’ Doctrine,” 52 Vanderbilt Journal of Transnational Law 245 (2019). The abstract is as follows:

This Article challenges and proposes refinements to the “unwilling or unable” doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policy makers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell short of their objective, and they create a risk of destabilizing the jus ad bellum regime.

This Article notes that the principles do not reflect custom, and it examines some of the ways in which they are inconsistent with the established understanding of the jus ad bellum regime. Specifically, they: lower the threshold for what constitutes an armed attack; eviscerate the temporal component from the concept of imminence, thereby destabilizing the core principle of necessity; improperly import the law of state responsibility into the jus ad bellum analysis; and undermine the independence of the international humanitarian law (IHL) and the jus ad bellum regimes. Finally, the principles do not provide sufficient guidance on how or by whom a range of key determinations are to be made, particularly regarding the “ability” or “unwillingness” of the territorial state. The principles lump all these determinations together, and suggest that they may all be made unilaterally by the target state, governed only by a single, low reasonableness standard. All of this weakens the constraints of the jus ad bellum regime more generally, thus raising the risk of inter-state war.

The Article takes seriously the operational imperatives in dealing with the threat posed by terrorist organizations, but proposes refinements to the principles to address each of these problems, so as to achieve greater consistency with established principles of the jus ad bellum regime. It develops new ideas on imminence, and drawing upon theories of self-judgment in international law, it disaggregates the decisions that have to be made and proposes differentiated standards to govern their execution and later assessment.