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 Nagoya High Court Decision on Japanese Forces in Iraq

The Nagoya High Court handed down a judgment last week on Japan’s involvement in Iraq. While dismissing the applicants’ claims on the basis that they lacked legal standing, the Court held that the Air Self-Defence Force (ASDF) operations in Iraq violated the limits in the authorizing legislation, and the prohibition on the use of force in Article 9(1) of the Constitution.

The judgment, and how the government is responding to it, raises profoundly important issues. The case was one of dozens that have been commenced by citizen groups in opposition to the deployment of the SDF in support of operations in Afghanistan and Iraq. This is the first decision that has held that the operations are unconstitutional, and it is the most important decision involving Art. 9 to be handed down by a court in over 25 years. Below I provide more of the background and the reasoning of the decision, but first, I address the main issues it raises.

The court dismissed the plaintiffs’ claims both for damages in respect of their right to live in peace, and for the injunction against continued deployment of the ASDF. The plaintiffs were found not to have a direct legal interest that would be harmed by the ASDF operations. While finding that the deployment in Iraq was a violation of the prohibition on the use of force in Art. 9 of the Constitution, it held that the plaintiffs did not have standing to claim a remedy for that violation. It was, therefore, a win for the government in terms of the specific demands of plaintiffs. Yet it was a major set-back for the government in terms of its policy having been judged as being unconstitutional.

Representatives of the government, including the prime minister, have not only made statements to the effect that the judgment will not change any aspect of government policy, but are rejecting the validity of the decision. Chief Cabinet Secretary Machimura stated that “I cannot accept such a court ruling when the Japanese government has determined that [Baghdad airport] is a non-combat zone.” The court found as a matter of both fact and law, on the basis of the evidence before it and its interpretation of the definition of “combat area” in the Iraq Special Measures Law, that Baghdad was a combat zone.Read more…