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Third Party Liability for Hezbollah Attacks against Israel

Published online by Cambridge University Press:  06 March 2019

Stefan Kirchner

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After an Israeli soldier was abducted in the south of the country in late June, Israeli Defense Forces (IDF) began Operation “Summer Rain” in Gaza in order to secure the safe return of the soldier. On 12 July 2006, Hezbollah forces captured two Israeli soldiers in Northern Israel and killed three more, triggering Operation “Just Reward”, which ended with the fragile cease-fire agreed upon under the terms outlined in U.N. Security Council Resolution 1701. The conflict between Israel and the Hezbollah had the potential of plunging the whole region in a wider war; as a matter of fact, it seems that Iran and Syria were fighting a proxy war against Israel. Hezbollah alone does not have the technological capabilities of hitting Haifa or Nazareth with their own Katjusha-type missiles, which essentially are not much more than slightly modified World War II weapons, yet Hezbollah struck deep inside Israel. On the last day of the war alone, with the cease-fire already in sight, 246 rockets were fired into Israel. Moreover, it appears that Israel was not hit only by Katjushot but also by other missiles with a longer range. Given their arsenal and longstanding support for Hezbollah, the assumption that Iran and Syria have actually delivered missiles or missile technology to Hezbollah is anything but farfetched. News reports during the conflict indicated that Hezbollah used Syrian 220mm-missiles against Israel and that weapons have been delivered to the Hezbollah from Iran, often via Syria. Hezbollah's arsenal includes Iranian-made Zilzal-2 missiles with a range of 210 km, Russian-designed AT-5 anti-tank weapons which were produced in Iran, as well as Russian-made Kornet-E laser-guided weapons and Metis-M anti-armor weapons, both supplied by Syria. Most notorious was the use of Iranian Fajr-3 missiles against Israeli cities. Thousands of these missiles had already been provided to Hezbollah before the fighting began. The rockets that hit the town of Afula, south of Haifa, on 28 July 2006, and which was referred to by Hezbollah as Khaibar-1, likely were the first Iranian-made Fajr-5 missiles ever used by Hezbollah. Despite the destruction of the infrastructure in Lebanon during Operation “Just Reward”, Hezbollah continued to receive weapons. But Syrian and Iranian influence goes back a long time. Today's Hezbollah is the result of an Iranian-nurtured program that lasted for two decades and transformed a local guerilla group into a full-fledged army. Today, Hezbollah's military wing is no longer a group of partisans but an army comprising between 6,000 and 8,000 regular members, not counting reserves, divided into battalions of 250 men, as well as special forces. Not only was it the late Ayatollah Khomeni who provided the initiative for the foundation of Hezbollah, Iran continues to trains Hezbollah fighters and supports Hezbollah's army with weapons, such as the C-802 land-to-sea-missile that was used against the Israeli Naval Ship “Hanit” during the recent conflict.

Type
Developments
Information
German Law Journal , Volume 7 , Issue 9 , 01 September 2006 , pp. 777 - 784
Copyright
Copyright © 2006 by German Law Journal GbR 

References

1 S.C. Res. 1701, U.N. Doc. S/RES/1701 (August 11, 2006).Google Scholar

2 Nasrallah wins the war, The Economist, August 19–25, 2006, at p. 9.Google Scholar

3 See a report broadcast by Deutschlandfunk Radio on 17 July 2006 at 6:12 a.m. Central European Summer Time. Harel, Amos and Issacharoff, Avi, The Rocket Menace That no One Wanted to Acknowledge, Haaretz - Online Edition, 17 July 2006, available at http://www.haaretz.com/hasen/spages/739067.html.Google Scholar

4 Fulghum, David A. and Wall, Robert, Lebanon Intermission; Israel Starts Examining the Military's Roles, Missions and Technology During Lull in Lebanon Fighting, 165 Aviation Week & Space Technology 32 (No. 8, August 21, 2006).Google Scholar

5 Id.Google Scholar

6 Dakroub, Hussein, Hezbollah Says it Fired New Rocket in Strike on Israeli City South of Haifa, Associated Press Worldstream, July 28, 2006, 4:46 PM GMT.Google Scholar

7 See Tsyganok, Anatoly, A No-contact War Against Partisans Didn't Work Out - Why Hezbollah Gunmen Believe They Defeated the Israeli Army, 94 Defense and Security (August 25, 2006) (also: 32 Voenno-Promyshlenny Kurier 2 (August 2006)).Google Scholar

8 Rosenberg, Carol, Hezbollah Army Is a Powerful Blueprint, How 2-decade Program Turned Guerillas Into a Force of Depth, Might, Charlotte Observer, August 19, 2006, at p. 1 A.Google Scholar

9 See supra note 7.Google Scholar

10 See supra note 8.Google Scholar

11 Zoulay, Youval A. et al., Rockets Strike Afula, Jezreel Valley for First Time; Hezbollah: We Can Hit Anywhere, Haaretz - Online Edition, 17 July 2006, available at http://www.haaretz.com/hasen/spages/738747.html.Google Scholar

12 See supra note 6.Google Scholar

13 Wolf, Joachim, Zurechnungsfragen bei Handlungen von Privatpersonen, 45 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 232 (1985).Google Scholar

14 See United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, 35 (May 24).Google Scholar

15 Hangin, Xue, Transboundary Damage in International Law 1 (2003). Hangin considers international environmental law claims to form a third, distinct, category. See Gehring, Thomas and Jachtenfuchs, Markus, Liability for Transboundary Environmental Damage - Towards a General Liability Regime, 4 European Journal of International Law 92, 107 (1993) (Arguing that environmental law claims can fit into the first category of liability for injurious consequences arising from acts not prohibited under international law). Apart from this category, there is only a single general regime of state responsibility. See Bodanksy, Daniel and Crook, John R., Symposium: The ILC's State Responsibility Articles – Introduction and Overview, 96 American Journal of International Law 773, 781 (2002).Google Scholar

16 Alfred Verdross and Bruno Simma, Universelles Völkerrecht § 1262 (1984).Google Scholar

17 Particularly instructive are the IUCN Draft International Covenant on Environment and Development, which contains a difference between liability (Art. 48) and responsibility (Art. 47), as well as Art. 139 (1) (responsibility) and (2) (liability) of the 1984 Law of the Sea Convention (LOSC).Google Scholar

18 Art. 51 (2) First Protocol Additional to the Geneva Conventions. See G.A. Res. 2444 (XXIII), U.N. Doc. A/7433 (December 19, 1968); Institute de droit international, Art. 4 of the Resolution on September 9, 1969, AIDI 53 II (1969), at p. 375.Google Scholar

19 Art. 51 (4) First Protocol Additional to the Geneva Conventions.Google Scholar

20 Scholl-Latour, Peter, Kampf dem Terror - Kampf dem Islam? 261 (2003).Google Scholar

21 Id.Google Scholar

22 Supra note 7.Google Scholar

23 S.C. Res. 1559, U.N. Doc. S/RES/1559 (September 2, 2004).Google Scholar

24 On the liability for actions of a state's organs, see Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999 I.C.J. 62, 87 (April 29); Francisco Mallén (United Mexican States) v. United States, 4 R.I.A.A. 173, 174 (1927).Google Scholar

25 See Bornheim, Gaby, Haftung für grenzüberschreitende Umweltbeeinträchtigungen im Völkerrecht und im Internationalen Privatrecht 276 (1995); Andrassy, Juraj, Les relations internationales de voisinage, 79 Recueil des Cours 79 (1951 II).Google Scholar

26 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark / Federal Republic of Germany v. The Netherlands), 1969 I.C.J. 3, 77 (February 20).Google Scholar

27 Corfu Channel (United Kingdom v. Albania), 1948 I.C.J. 4 (March 25).Google Scholar

28 Antonio Cassese, International Law 390–91 (2001).Google Scholar

29 S.C. Res. 1373, U.N. Doc. S/RES/1373 (September 28, 2001).Google Scholar

30 Id. at ¶ 1; S.C. Res. 1368, ¶ 4, U.N. Doc. S/RES/1368 (September 12, 2001).Google Scholar

31 S.C. Res. 1373, ¶ 2, U.N. Doc. S/RES/1373 (September 28, 2001).Google Scholar

32 While state liability requires a violation of primary duties under international law, the liability rules themselves contain secondary rules. See IUCN Commentary on the Draft International Covenant on Environment and Development, Launched at the United Nations Congress on Public International Law held at New York, NY on 13 March 1995, Revised Text presented to the Member States of the United Nations on the Occassion of the Closing of the UN Decade of International Law, 54th Session of the UN General Assembly, 17 November 1999, Environmental Policy and Law Paper No. 31 Rev., p. 135, there fn. 447. See also Drumbl, Mark A., Trail Smelter and the International Law Commission's Work on State Responsibility for Internationally Wrongful Acts and State Liability, in Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration 85 (Rebecca M Bratspies and Russell A. Miller eds., 2006). On the line separating primary from secondary duties, see Bodansky, Daniel and Crook, John R., Symposium: The ILC's State Responsibility Articles – Introduction and Overview, 96 American Journal of International Law 773, 781 (2002).Google Scholar

33 See S.C. Res. 1373, ¶ 2(c), U.N. Doc. S/RES/1373 (September 28, 2001).Google Scholar

34 Supra note 20.Google Scholar

35 Since domestic (e.g. constitutional) rules are irrelevant for the legal situation under international law, this is so, regardless of whether this transfer of factual authority has occurred based on an active behavior or on an act of the regular organs of the state.Google Scholar

36 See Hoss, Cristina and Dupuy, Pierre-Marie, Trail Smelter and Terrorism: International Mechanisms to Combat Transboundary Harm, in Transboundary Harm in International Law: Lessons from the Trail-Smelter-Arbitration 225, 236 (Rebecca M. Bratspies and Russell A. Miller eds., 2006).Google Scholar

37 See supra notes 3, 4, 6, 7 and 10.Google Scholar

38 See supra notes 6 and 11.Google Scholar

39 Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. 15, 63 (June 27).Google Scholar

40 Prosecutor v. Tadić, Case No. IT-94–1, Appeals Chamber, Judgment (Merits), ¶ 137 (July 15, 1999).Google Scholar

41 Id.Google Scholar

42 Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. 15 (June 27).Google Scholar

43 Reflecting existing customary international law, a control requirement is also found in Art. 139 LOSC.Google Scholar

44 Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. 15, 63 (June 27).Google Scholar

45 See Schering Corp. v. Islamic Republic of Iran, 5 Iran-U.S. Claims Tribunal 361, 370 (1984).Google Scholar

46 Id. On the requirement that the government issue orders, see Flexi-Van Leasing Inc. v. Islamic Republic of Iran, 12 Iran-U.S. Claims Tribunal 335, 349 (1986).Google Scholar

47 Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. 15, 63 (June 27).Google Scholar

48 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, 34 (May 24).Google Scholar

49 See Goldhagen, Daniel Jonah, Israel's Fight for Life in the name of the West, Weekend Australian, August 19, 2006, at 27.Google Scholar