¹ Communication from United States Secretary of State Lansing to Ambassador of Mexico Bonillas (26 August 1919), cited in Hackworth, G., Digest of International Law (1941) vol. 2, p. 300Google Scholar. For other similar examples, see e.g., Hershey, , “Incursions into Mexico and the Doctrine of Hot Pursuit”, (1919) 13 Am. J. Int'l L. 557–561CrossRefGoogle Scholar.

² Shipler, , “Lebanese Tell of Anguish of Living Under the P.L.O.”, The New York Times, 25 July 1982Google Scholar. David K. Shipler vividly described what this “independent state” was like:

“It had an army, a police force, a crude judicial system, an educational and welfare system, a civil service and a foreign policy. Those who lived within its rough boundaries said they were too terrified then to describe it to outsiders. Now, for the first time, they are describing what it was like, telling of theft, intimidation and violence.

Its territory was scattered in patches of influence, from its de facto capital in west Beirut and the adjacent camps, where the Palestinians shared control with the Syrian Army, to its provincial areas of virtually exclusive Palestinian control, a region that extended southward along the sparkling Mediterranean, through the coastal cities of Damur, Sidon and Tyre, and inland across terraced hills east and south of the town of Nabatiye.

Under the umbrella of the Palestine Liberation Organization, it comprised an array of competing factions, some pro-Syrian, some pro-Iraqi, all less influential than Al Fatah, the faction headed by Yasir Arafat. Its authority flourished amid the weaknesses of the Lebanese Government.

But politics here was much more than patronage and debate. The major tool of persuasion was the gun, according to those who lived through it.

The citizens of this state within a state were those who had not been allowed to become citizens of Lebanon: the Palestinians, about 300,000 of them, whose impoverished, squalid settlements of nameless alleys and humble concrete houses became the P.L.O.'s political and military centers. Most of them, or their parents, had come in 1948 in flight from the fighting in Israel's war of independence.

Most of those subject to the P.L.O.'s rule, however, were Lebanese nationals in the cities and villages beyond the boundaries of the camps, both Christians and Moslems, who said they felt powerless in their own homes ….” Id.

See Gervasi, F., Media Coverage, The War In Lebanon (1982) 1 at 6–7Google Scholar; Podhoretz, , “J'Accuse”, (September 1982) Commentary 21 at 25Google Scholar; Schiff, Z. and Ya'ari, E., Israel's Lebanon War (1984) 79–80Google Scholar; “‘Peace for Galilee’“, (1982) 27 Born in Battle/Defence Update International 9; Rustin, B., The Israeli Incursion Into Lebanon (1982) 8Google Scholar; Williams, , “Peace for Galilee: The Context”, (December 1982) 1 IDF Journal 3 at 3–4Google Scholar. See also Gerol, , “TV exaggerates Lebanese damage”, The Citizen, 30 October 1982Google Scholar; “The End Of The Fantasy”, (5 July 1982) The New Republic 7; Kempster, , “Many in PLO Tried to Pass as Civilians, Israelis Report”, Los Angeles Times, 21 June 1982Google Scholar; Randal, , “Sidon's Dead Are Still Uncounted”, The Washington Post, 19 June 1982Google Scholar; Aamidor, “Digging Out of The Ruins”, (27 July 1982) Newsview 10 at 11; “Lebanon: Bound and Battered”, (27 July 1982) Newsview 12 at 14.

³ Gemayel, , “The Price and the Promise”, (Spring 1985) Foreign Affairs 759 at 764Google Scholar (emphasis added). See, e.g., Israeli, R. (ed.), PLO in Lebanon: Selected Documents (1983) 2Google Scholar. See also Laffin, , “The Desperate War”, (April 1983) British Army Review 5Google Scholar; Schiff and Ya'ari, supra n. 2, at 79. The PLO's presence in Lebanon added considerably to the tension in that country beginning in the 1970's and also directly led to that country's tumultuous civil war, which broke out in 1975. Over 100,000 people died during that internal conflict. See, e.g., interview with Bashir Gemayel, prior to his being elected President of Lebanon on 23 August 1982, broadcast by ABC Television News on 27 June 1982 and by ABC's news programme “20/20” on 9 July 1982, cited in Israeli, supra at 256, 258; Ignatius, , “Damur, Lebanon: One Town's Agony Mirrors the Nation's”, The Wall Street Journal, 3 November 1982Google Scholar. Many, if not most, were massacred by the PLO. Gervasi, supra n. 2, at 12; Gervasi, , “A Story of PLO terror in Lebanon”, Los Angeles Herald Examiner, 13 July 1982Google Scholar. According to Bashir Gemayel, about one-third of a million others were wounded in that war, and almost one-half of Lebanon's population of three million was uprooted from its villages and homes. Gemayel, supra, cited in Israeli, supra at 258. Since 1975, 180,000 refugees fled from southern Lebanon alone in fear of the PLO. “‘About 1,000’ terrorists killed in Lebanon”, The Jerusalem Post, 28 June 1982Google Scholar. Bashir Gemayel was assassinated some two months after the interview appeared on ABC television.

Lebanese Representative to the United Nations, E. Ghorra, in a speech given at the General Assembly of the United Nations on 14 October 1976, described the extent of the havoc caused by the PLO in Lebanon and to Lebanese society:

“… Why did [the Palestinians] pursue a war in a country that had stood by them in all their years of exile and ordeal? [The civil war in Lebanon, which began in 1975, had by 1976 resulted in] [f]ifty thousand dead, 100,000 injured, 1 million Lebanese refugees in Syria, the Arab world, Europe and America; the dismantling of our administrative, economic, social and educational institutions and enterprises …. So much human suffering and so much destruction were the result of the Palestinian participation in the fighting and their stubborn persistence in it. It is deplorable that those who have been the victims of a gross injustice are inflicting an injustice of such inhuman proportions on Lebanon and its people.

It is incomprehensible to the Lebanese why western Beirut and peaceful towns and villages in northern Lebanon, in the Beka'a valley, or in the heartland of the Lebanese mountains or Sidon, having no connection with any aspect of the conflict, should be besieged, occupied and sometimes destroyed by Palestinian forces. Why have so many innocent civilians been killed in the name of ‘liberation’ and ‘revolution’? And why should many public utilities and buildings be under Palestinian control?” 31 U.N. GAOR, UN. Doc. A/31/PV.32, at 603 (1976) (emphasis added).

⁴ Laffin, supra n. 3, at 7; Gabriel, R., Operation Peace for Galilee: The Israeli-PLO War in Lebanon (1984) 47Google Scholar. 1,500 PLO armed men were located in the Tyre region, 700 in the district along the coast between the Zaharani and the Litani Rivers, 1,500 in the Sidon area, 1,500 in the south-east part of Lebanon known as “Fatahland”, 1,000 in the Nabatiye sector, 500 in the Aichiye-Rihane region and 700 in the area where the United Nations Interim Force in Lebanon (UNIFIL) operated. A further 6,000 PLO fighters were deployed in the Beirut-Damur region, Laffin, supra no. 3, at 7; Gabriel, supra at 48; Eshel, D., the Lebanon war [sic], 1982 (1983) 31Google Scholar; Schiff and Ya'ari, supra n. 2, at 134–135.

⁵ See Laffin, supra n. 3, at 6. By building itself into a “regular army”, explained John Laffin, a Middle East affairs analyst, “the PLO would have two extra capabilities. First, within two years it would have a defensive strength that could make it much more difficult for Israel to destroy the PLO militarily in Lebanon. The PLO wanted to be able to slow down an Israel attack, thus enabling other Arab forces to come to its aid and also allow time for international pressures to build up against Israel. Second, regular forces could improve the PLO position in relation to the Christians, and [these PLO forces] could play a real auxiliary role against Israel when Syria went on the offensive—as it planned to do within two years”. Id. See also Muravchik, J., “Misreporting Lebanon”, (1983) 23 Policy Review 11 at 13Google Scholar.

⁶ Laffin, supra n. 3, at 6.

⁷ Laffin, supra n. 3, at 13. Sec Eshel, supra n. 4, at 76; Israeli, supra n. 3, at 9.

⁸ Eshel, supra n. 4, at 26. See Laffin, supra n. 3, at 7. See also Bavly, D. and Salpeter, E., Fire in Beirut: Israel's War in Lebanon wilh the PLO (1984) 93Google Scholar; Gabriel, supra n. 4, at 113; Israeli, supra n. 3, at XIII.

⁹ Harkabi, Y., The Palestinian Covenant and its Meaning (1979) 9Google Scholar.

¹⁰ See id.

¹¹ The Palestinian National Charter (Decisions of the National Congress of the Palestine Liberation Organization held in Cairo from 1–17 July 1968), article 15, cited in Moore, J. (ed.), The Arab-Israeli Conflict: Readings and Documents (abr. and rev. ed., 1977) 1086, 1088Google Scholar. According to Yehoshafat Harkabi, this document may be called either “Covenant” or “Charter”. Harkabi, supra n. 9, at 27. The term “Covenant” will hereinafter be used in the text of this article to refer to this document.

¹² The Palestinian National Charter, supra n. 11, article 2, cited in Moore, supra n. 11, at 1086. All of Israel, not just the West Bank (Judea and Samaria) and Gaza, is considered by the PLO to be “occupied” land which it seeks to “liberate”. Levenfeld, , “Israel's Counter-Fedayeen Tactics in Lebanon: Self-Defense and Reprisal Under Modern International Law”, (1982) 21 Colum. J. Transnat'l L. 1 at 7, n. 18Google Scholar. See Harkabi, supra n. 9, at 33, 34, 39.

¹³ The Palestinian National Charter, supra n. 11, article 9, cited in Moore, supra n. 11, at 1087.

¹⁴ E.g., Laffin, supra n. 3, at 5. The Fourth Fatah Conference in May 1980 adopted a political platform defining the goals of Fatah, the PLO's major component. Among those goals are “the liberation of Palestine, a full and complete liberation; the annihilation of the Zionist entity in all of its economic, political, military and cultural manifestations….” Israeli, supra n. 3, at 12, 13.

^14a See also infra at n. 42.

¹⁵ E.g., Bavly and Salpeter, supra n. 8, at 21; Gabriel, supra n. 4, at 54.

¹⁶ Bavly and Salpeter, supra n. 8, at 33. Between 1973 and 1982 alone, the PLO fired rockets and artillery at Israeli settlements almost 1550 times, killing 108 people. Gabriel, supra n. 4, at 56. Some have questioned the accuracy of reports containing accounts of casualties caused by terrorist actions. Given the nature of the circumstances involved, it is difficult to obtain fully reliable statistics.

¹⁷ See, e.g., Laffin, supra n. 3, at 6; Williams, supra n. 2, at 5; Rabinovich, I., The War for Lebanon, 1970–1983 (1984) 120Google Scholar. See also Schiff and Ya'ari, supra n. 2, at 36, 81–82.

¹⁸ “The End Of The Fantasy”, supra n. 2, at 8. The steady pounding of the “field guns and … advanced Katyusha rockets … placed the settlements in the Galilee under intolerable fire…. [and] all but paralyzed the entire sector of northern Israel from the coastal town of Nahariya to Kiryat Shmonah at the tip of the Upper Galilean ‘finger’…. [S]ome 40 percent of the population of Kiryat Shmonah fled the town. That, too, was appalling; never had Israel witnessed such a mass exodus from a settlement under attack”. Schiff and Ya'ari, supra n. 2, at 36. See Bavly and Salpeter, supra n. 8, at 81.

^18a See Rabinovich, supra n. 17, at 123; Gross, , “The Legal Implications of Israel's 1982 Invasion into Lebanon”, (1983) 13 Cal. W. Int'l L.J. 458 at 464Google Scholar. See statement of Peter D. Constable, Deputy Assistant Secretary, Bureau of Near Eastern and South Asian Affairs, United States Department of State, Before the Sub-committee on Europe and the Middle East of the Committee on Foreign Affairs, House of Representatives, “Developments in the Middle East, March 1982”, 97th Cong., 2d. Sess. 3 (1982).

The PLO took advantage of the cease-fire to add vast quantities of combat materiel to its burgeoning arsenal. E.g., Gabriel, supra n. 4, at 58. See Constable, supra at 2–3, 9. “It poured tons of heavy equipment into its bases in southern Lebanon, equipping ‘them with Soviet-made tanks and heavy mobile rocket launchers and artillery”. “Lebanon Can Now Be Lebanon”, (23 June 1982) The New Republic. While the cease-fire agreement may not have specifically mentioned the issue of an arms build-up, explained Peter Constable, “[o]bviously, anything that raises tensions in the area can undermine the spirit of the cease fire ….” Constable, supra at 3. See also id., at 9–10.

¹⁹ Gabriel, supra n. 4, at 58; Israeli, supra n. 3, at 7. See Laffin, supra n. 3, at 6. Although sources differ as to the exact number of casualties, Laffin cites the following statistics pertaining to the period of the cease-fire, from 24 July 1981 until 6 June 1982: “Killed: five Israeli soldiers, twelve civilians, three of Major Haddad's soldiers and nine people living overseas. Wounded: sixteen soldiers, eighty-three civilians in Israel (including twenty-five tourists) and one hundred and sixty-one Jews and non-Jews abroad”. Id. But see Constable, supra n. 18a, at 7.

²⁰ Laffin, supra n. 3, at 6.

²¹ See, e.g., Stone, , Israel and Palestine, Assault on the Law of Nations (1981) 47Google Scholar.

²² See, e.g., Speeches of Yehuda Blum, Representative of Israel to the United Nations, U.N. SCOR. S/PV. 2374 (Provisional) 28–30 (5 June 1982); 36 U.N. SCOR, S/PV. 2292, at 21 (17 July 1981); 34 U.N. SCOR, S/PV. 2113, at 21, 22, 23 (19 January 1979); Israeli, supra n. 3, at 7. But see the Speech of Tueni, the Representative of Lebanon to the United Nations, U.N. SCOR, S/PV. 2374, supra at 13.

²³ Laffin, supra n. 3, at 8.

²⁴ Gabriel, supra n. 4, at 62.

²⁵ “Lebanon Can Now Be Lebanon”, supra n. 18a.

²⁶ Gichon, , “Peace for Galilee: The Campaign”, (December 1982) 1 IDF Journal, 11Google Scholar; Schiff and Ya'ari, supra n. 2, at 102–103; Gabriel, supra n. 4, at 62.

²⁷ “Lebanon Can Now Be Lebanon”, supra n. 18a.

²⁸ Laffin, supra n. 3, at 8.

²⁹ Id., at 9. Conor Cruise O'Brien, referring specifically to the situation faced by Israel immediately prior to the entrance of Israeli forces into Lebanon in Operation Peace for Galilee, remarked: “I can't think of any other State in the world that would tolerate a ‘PLO in Lebanon’ type of situation on its borders, if it had the power to end that situation by armed action. Certainly, Mrs. Thatcher's Britain would not have tolerated such a thing for nearly as long as Israel did”. O'Brien, “True tales from Tyre and Sidon”, The Observer, 1 August 1982. See Rustin, supra n. 2, at 2; Lawrence, , “Before we rush to condemn the Israelis …” The Times, 20 September 1982Google Scholar; “Lebanon Can Now Be Lebanon”, supra n. 18a.

³⁰ E.g., Stone, supra n. 21, at 47; Levenfeld, supra n. 12, at 5.

³¹ Although the terms of the Cairo Agreement appeared in different periodicals and newspapers, no Lebanese government in power acknowledged the authenticity of the texts which were published. Cooley, , “The Palestinians”, in Haley, P. and Snider, L., Lebanon in Crisis: Participants and Issues (1979) 21 at 30Google Scholar. A version of the Agreement appears in Rabinovich, I. and Zamir, H., War and Crisis in Lebanon 1975–1981 (1982, in Hebrew) 187–188Google Scholar.

³² Communication dated 25 August 1976 from Rachid Karami, President of the Council of Ministers, Minister of Foreign Affairs, a.i., of Lebanon to the Secretary-General of the United Nations, U.N. Doc. A/31/184, at 2 (26 August 1976).

³³ Deeb, M., The Lebanese Civil War (1980) 102Google Scholar.

³⁴ id., at 18. See Cooley, supra n. 31, at 30.

³⁵ Rabinovich and Zamir, supra n. 31, at 187 for the relevant provision as it appears in the Cairo Agreement; Cooley, supra n. 31, at 30.

³⁶ Rabinovich and Zamir, supra n. 31, at 187–188 for the relevant provisions as they appear in the Cairo Agreement; Deeb, supra n. 33, at 102.

³⁷ Rabinovitch and Zamir, supra n. 31, at 188 for the relevant provision as it appears in the Cairo Agreement; Cooley, supra n. 31, at 30. See Snider, “Inter-Arab Relations”, in Haley and Snider, supra n. 31, at 179, 180: Gabriel, supra n. 4, at 41; Israeli, supra n. 3, at 4.

³⁸ Rabinovich, supra n. 17, at 43. The text of the Melcart Agreement was not officially published. Id., at 189.

³⁹ Deeb, supra n. 33, at 103; Herzog, , “Record of Deceit”, The Jerusalem Post, 23 July 1982Google Scholar. See also Gabriel, supra n. 4, at 42, Another one of the many agreements concluded which concerned the status of the PLO in Lebanon, the Shtura Agreement, was signed on 25 July 1977 by the Lebanese, the PLO and, this time, the Syrians as well. The Shtura Agreement, various versions of which were published in the press (see, e.g., Rabinovich and Zamir, supra n. 31, at 235–238 for two of the different renditions), inter alia, prohibited the Lebanese army from positioning itself in the refugee camps located on Lebanese soil, since the duty to provide security in the camps, under the agreement's terms, was placed in the hands of the PLO. Id., at 235–236. This agreement also called for the terrorists to withdraw to an area some 15 kilometers from the Lebanon-Israel border and for the Lebanese army to enter this area. Id., at 236. This attempt to place even minimal restrictions on the PLO was basically unsuccessful. Herzog, supra. See Israeli, supra n. 3, at 5; Rabinovich, supra n. 17, at 109.

⁴⁰ Snider, supra n. 31, at 180; Cooley, supra n. 31, at 30; Rabinovich, supra n. 17, at 41.

⁴¹ See, e.g., Shipler, supra n. 2, and other sources cited in n. 2; Eshel, supra n. 4, at 31; Levenfeld, supra n. 12, at 5; Gabriel, supra n. 4, at 132; Israeli, supra n. 3, at 6. Representative of Lebanon to the United Nations, E. Ghorra, on 14 October 1976, in a speech before the United Nations General Assembly deploring the intolerable situation caused by the PLO in his country, also spoke of the plight of the refugee camps and their transformation by the PLO into military strongholds:

“… [T]he origins of the tragic and complex events that have disrupted Lebanese society… are to be found in [among other things]… the assualts [sic] perpetrated by Palestinians against the sovereignty of Lebanon and the security of its people.

… [There has been] constant Palestinian intervention in the internal affairs of Lebanon and intolerable encroachment on its sovereignty.

… [In 1973, Lebanese] President Suleiman Franjieh … denounced the illegal occupation of parts of Lebanese territory by Palestinian elements….

… The Palestinians acted as if they were a “State” or “States” within the State of Lebanon and flagrantly defied the laws of the land and abused the hospitality of its people.

… For years, [the Palestinians] steadily increased the influx of arms into Lebanon …. [The Palestinians] transformed most—if not all—of the refugee camps into military bastions around our major cities, in the heart of our commercial and industrial centres, and in the vicinity of large civilian conglomerations.

… [C]ommon-law criminals fleeing from Lebanese justice found shelter and protection in the camps, where the arm of Lebanese law could not reach them.

Those camps in fact became centres for the training of mercenaries who were sent and financed by some other Arab States…. Palestinian elements belonging to various splinter organizations resorted to kidnapping Lebanese—and sometimes foreigners—holding them prisoners, questioning them, torturing them and even sometimes killing them”. 31 U.N. GAOR, U.N. Doc. A/31/PV. 32, supra n. 3, at 602.

⁴² While its primary modus operandi is to attack Israeli-related targets, the PLO also succeeded in turning Lebanon into a centre for international terrorism. Training courses in terrorism were offered in principal PLO training camps in Lebanon at places such as Damur, Nahr al-Bared, Bourge ash-Shimali, Shatilla and Baalbek. E.g., Bavly and Salpeter, supra n. 8, at 26. Among the terrorist groups which have been supplied with PLO equipment, instructions, training and/or logistics are the following: Baader-Meinhof Red Army Faction (West Germany), Japanese Red Army (Japan), Irish Republican Army (Northern Ireland), Brigada Rosa (Red Brigades, Italy), Front for the National Liberation of Corsica (FLNC, France), Tupamaros (Uruguay), Movimiento Peronista Montonero (MPM, Argentina-Uruguay), Euzcadi Ta Askatauna (ETA, Basque, Spain), Secret Army for the Liberation of Armenia (Turkey), Dutch Red-Aid (The Netherlands), Turkish People's Liberation Front (TPLF, Turkey), Movimiento Izquierda Revolucionaria (Movement of the Revolutionary Left, MIR, Chile), Moro National Liberation Front (MNLF, Philippines), Zimbabwe African National Union, SWAPO (Namibia, Southwest Africa), Operaia Autonomia (Italy). Bavly and Salpeter, supra n. 8, at 26. See report by Francois Cellier, cited in Israeli, supra n. 3, at 262, 266, Document 105. Moreover, some non-Arab terrorists even stayed in Lebanon to fight against Israel. See, e.g., interview broadcast on Israel Television on 23 July 1982, cited in Israeli, supra n. 3, at 237, 238, Document 78. See also Gabriel, supra n. 4, at 115–116.

⁴³ The Palestinian National Charter, supra n. 11, article 8, cited in Moore, supra n. 11, at 1087. See id., article 9.

⁴⁴ Eshel, supra n. 4, at 49.

⁴⁵ Fawcett, , “Intervention in International Law, A Study of Some Recent Cases”, (1961–II) 103 Recueil des Cours 343, 358–359Google Scholar (emphasis added). “United Nations practice”, explained John C. Novogrod, “has condemned indirect aggression [i.e., activities carried on or tolerated by a state on its territory which are calculated to be injurious to another state] as being contrary to the purposes and principles of the Charter. More specifically, indirect aggression must be deemed violative of the postulate of peaceful change. Indeed, to argue that direct and indirect aggression could not equally be violations of article 2(4) of the Charter would be to make a fetish of literalism”. Novogrod, , “Indirect Aggression”, in Bassiouni, M. and Nanda, V. (eds.), A Treatise on International Criminal Law (1973) vol. I, pp. 198, 227Google Scholar. Thus, continued Novogrod, “it may be argued that if art. 2(4) is to play a meaningful role in delimiting the resort to coercion in the world arena, at least some forms of indirect aggression must be included in the definition of force” (at 227, n. 153) as the term appears in Article 2(4) of the United Nations Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state ….” (emphasis added).

⁴⁶ Customary international law in this regard is reflected in the United Nations Charter, Article 2(1) (1945), as well, which stipulates that the United Nations “is based on the principle of the sovereign equality of all its Members”.

⁴⁷ Novogrod, supra n. 45, at 214, 215. “[W]hat a State claims the right exclusively to control, such as its own territory”, wrote Charles C. Hyde, “it must possess the power and accept the obligation to endeavor so to control as to prevent occurrences therein from becoming by any process the immediate cause of such injury to a foreign State as the latter, in consequence of the propriety of its own conduct, should not be subjected to at the hands of a neighbor”. Hyde, C., International Law, Chiefly as Interpreted and Applied by the United States (2d rev. ed., 1947) vol. I, p. 723Google Scholar.

⁴⁸ The Corfu Channel Case (Merits) (Great Britain v. Albania), Judgment, (1949) I.C.J. Reports 4 at 22. See Dinstein, , The Internal Authority of the State (1972, in Hebrew) 143Google Scholar; Van W. Thomas, A. and Thomas, A. J. Jr., Non-intervention: The Law and Its Import in the Americas (1956) 134Google Scholar.

⁴⁹ Reisman, , “Private Armies in a Global War System: Prologue to Decision”, (1973) 14 Virg. J. Int'l L. 1 at 3Google Scholar.

⁵⁰ The Case of the S.S. “Lotus”, Judgment, (1927) P.C.I.J., ser. A. No. 10, at 88–89 (dissenting opinion per Judge Moore). While in agreement with the Court's majority regarding the outcome of the case, Judge Moore, in his dissent, rejected the protective principle of jurisdiction, which based a State's jurisdiction on the victim's nationality. The majority of the Court held that Turkey, by instituting criminal proceedings against the watch officer of a French mail steamer involved in a high seas collision on 2 August 1926 with a Turkish collier, causing loss of Turkish lives, had not acted in conflict with the principles of international law. Id., at 23. See I. Brownlie, Principles of Public International Law (3rd ed., 1979) 301–302; W. Bishop, International Law: Cases and Materials (3rd ed., 1962) 549.

The concept of “due diligence”, which appears in the opinion of Judge Moore, is mentioned in some of the legal literature. Sec e.g., Thomas and Thomas, supra n. 48. at 217. However, the mere exercise of “due diligence” does not seem to have been recognized by many of the legal commentators, nor international treaties and resolutions of international organizations, to be a valid defence so as to exculpate a State hosting terrorists from responsibility for terrorist acts directed against another State and its citizens. See, e.g., nn. 47–49 and accompanying text supra, and nn. 51, 52, 54–62, 67–71 and accompanying text infra.

⁵¹ Kelsen, H., Principles of International Law (2nd ed. rev., Tucker, R. ed., 1966) 205–206Google Scholar. See Lauterpacht, , “Revolutionary Activities by Private Persons Against Foreign States”, (1928) 22 Am. J. Int'l L. 105 at 126CrossRefGoogle Scholar: “International law imposes upon the state the duty of restraining persons resident within its territory from engaging in such revolutionary activities against friendly states as amount to organized acts of force in the form of hostile expeditions against the territory of those states”.

⁵² Oppenheim, L., International Law: A Treatise (8th ed., Lauterpacht, H. ed., 1955) vol. 1, pp. 292–293Google Scholar.

⁵³ Novogrod, supra n. 45, at 215; Thomas and Thomas, supra n. 48, at 217; Fawcett, supra n. 45, at 356. See Oppenheim, supra n. 52, at 365. See also the text appearing in the second paragraph of n. 50 supra.

⁵⁴ García-Mora, M.. International Responsibility for Hostile Acts of Private Persons Against Foreign States (1962) 51CrossRefGoogle Scholar.

⁵⁵ See, e.g., Novogrod, supra n. 45, at 215.

⁵⁶ Art. II, Doc. C. 543. 1934. VII, League of Nations, 15 Official Journal (No. 12, Part I), at 1759 (December 1934) (emphasis added). The resolution was unanimously adopted by the Members of the Council of the League of Nations. Id., at 1760.

⁵⁷ Convention for the Prevention and Punishment of Terrorism (1937), Article 1 (1), cited in Hudson, M., International Legislation, A Collection of the Texts of Multipartite International Instruments of General Interest (1935–1937) (1941) vol. VII p. 865Google Scholar (emphasis added). The Convention was signed by France, Belgium, Norway, Great Britain, the Netherlands, Peru, Venezuela, Yugoslavia, Turkey, Rumania, the U.S.S.R., Monaco, Greece, Haiti, Argentina, Czechoslovakia, Albania, Bulgaria, Ecuador, Egypt, the Dominican Republic, Spain, Cuba, Estonia and India.

⁵⁸ Brownlie, , “International Law and the Activities of Armed Bands”, (1958) 7 Int'l & Comp. L. Q. 712 at 718CrossRefGoogle Scholar (emphasis added).

⁵⁹ Draft Code of Offences Against the Peace and Security of Mankind, Article 2(4), (1954) II Yrbk. Int'l L. Comm'n 150 (emphasis added); Gross, , “Some Observations on the Draft Code of Offences Against the Peace and Security of Mankind”, (1983) 13 Is. Yrbk. Human Rights 9 at 49Google Scholar. Following the adoption of the Draft Code by the International Law Commission on 27 July 1954 (Gross, supra at 18), it was submitted to the General Assembly of the United Nations for its consideration. Id., at 9, 12. Further consideration of the Draft Code was postponed at that time. Id., at 12. It was not until 23 years later, in 1977, that it was decided to resume consideration of the Draft Code. Id., at 9.

⁶⁰ Draft Code of Offences Against the Peace and Security of Mankind, Article 2(6), (1951) II Yrbk. Int'l L. Comm'n 135 (emphasis added); Gross, supra n. 59, at 50.

⁶¹ Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, Article 2, G.A. Res. 2131 (XX), 20 U.N. GAOR, Supp. 14, at 11, U.N. Doc. A/6014, 1408th plenary meeting (21 December 1965) (emphasis added).

⁶² Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, para. 1, G.A. Res. 2625 (XXV), 25 U.N. GAOR, Supp. 28, at 121, U.N. Doc. A/8028, 1883rd plenary meeting (24 October 1970) (emphasis added).

⁶³ See, e.g., Conventions defining Aggression (1933), Article 2(5), cited in Hudson, supra n. 57 (1937) vol. VI, pp. 413, 418. For example, on 3 July 1933, Rumania, Estonia, Latvia, Poland, Turkey, Persia, Afghanistan and the U.S.S.R. signed a Convention defining Aggression which contained this article. On 4 July 1933, another Convention defining Aggression containing the same article was signed by Czechoslovakia, Rumania, Turkey, the U.S.S.R. and Yugoslavia. A third Convention defining Aggression was signed on 5 July 1933 by Lithuania and the U.S.S.R. It, too, contained this identical article. Id., at 411. The idea of including support as an element of aggression had originated as an addition to the U.S.S.R. delegation's proposals of 6 February 1933 for the definition of aggression to the Committee on Security Questions of the League of Nations. Stone, J., Conflict through Consensus: United Nations Approaches to Aggression (1977) 74Google Scholar; Stone supra n. 21, at 87–88. García-Mora, writing in 1962, succinctly expressed “[t]he general conviction… that support to, and toleration of, armed bands likely to make incursions into foreign territory engage the international responsibility of the state amounting to an act of aggression”. García-Mora, supra n. 54, at 114. Quincy Wright, also, believed that “failure of a government to prevent armed bands or insurgents from organizing within its territory to engage in hostilities across a frontier, will make it responsible for aggression, if such hostilities actually occur”. Wright, , “The Prevention of Aggression”, (1956) 50 Am. J. Int'l L. 514 at 527CrossRefGoogle Scholar.

⁶⁴ Definition of Aggression, Article 3(g), G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. 31, at 142, U.N. Doc. A/9631, 2319th plenary meeting (14 December 1974).

⁶⁵ Stone, Conflict through Consensus, supra n. 63, at 74. Stone is nonetheless critical of the final wording of Article 3(g) of the Definition of Aggression of 1974: “What the Definition adds are clouds of doubt as to how much knowledge of such use, and capacity to control it, will thus implicate the host State”. Id., at 75.

⁶⁶ Id., at 76. An important issue is the interplay between the Definition of Aggression of 1974 and the aspect of self-determination. Article 7 of the Definition stipulates that “[n]othing in this Definition… could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right…; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter….” During the final drafting stages of this article, attempts were made, among other things, explicitly to reserve the right of a people to use force in a struggle for self-determination and to imply that third States could grant these people assistance in this use of force. These proposals were resisted firmly by many States. Consequently, in the final version of Article 7 as adopted, all express reference to peoples' use of force as of right were discarded in favour of a much weaker “right of these peoples to struggle to that end”. Stone, supra n. 21, at 92; Stone, Conflict through Consensus, supra n. 63, at 77. Moreover, even the Definition itself, in Article 6, recognizes the superiority of the United Nations Charter: “Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful”.

⁶⁷ Brownlie, supra n. 58, at 734 (emphasis added). For instance, “it is the established policy of the United States”, wrote Mr. Kenneth Rush in 1974, at the time Acting Secretary of State of the United States, “that a State is responsible for the international armed force originating from its territory, whether that force be direct and overt or indirect and covert….” Letter written on 29 May 1974 by Rush, Kenneth to Eugene Rostow of the Yale Law School, appearing in Rovine, , “Contemporary Practice of the United States Relating to International Law”, (1974) 68 Am. J. Int'l L. 720 at 736Google Scholar.

⁶⁸ Garcia-Mora, supra n. 54, at 51 (emphasis added). A rationale behind this is that “when a state is under a legal duty to act or under a legal duty not to act and it breaches that duty with knowledge that the consequences of that breach of duty will interfere in the affairs of another state by altering or maintaining the condition of things without its consent, the state which breached its duty intends the consequences just as truly as it intended to do or to omit the thing done. And in intending the consequences, it has thereby imposed its will upon another state. In such a case actual intent to alter or maintain the condition of things or to compel action or inaction becomes unimportant; intervention occurs, so that interference comes close to being synonymous with intervention”. Thomas and Thomas, supra n. 48, at 73.

⁶⁹ García-Mora, supra n. 54, at 30.

⁷⁰ See, e.g., Levenfeld, supra n. 12, at 12.

⁷¹ Id., at 45, 46.

⁷² A survey and analysis of the various theories concerning self-defence in international law will not be undertaken here. For such studies, see, e.g., Bowett, D., Self-Defense in International Law (1958)Google Scholar; Brownlie, I., International Law and the Use of Force by States (1963)CrossRefGoogle Scholar; Schachter, , “The Right of States to Use Armed Force”, (1984) 82 Mich. L.R. 1620CrossRefGoogle Scholar; Feinstein, , “Self-Defence and Israel in International Law: A Reappraisal”, (1976) 11 Is. L.R. 516Google Scholar.

⁷³ See, e.g., Speech of Yehuda Blum, Representative of Israel to the United Nations, before the Security Council on 6 June 1982, U.N. SCOR, U.N. Doc. S/PV.2375 (Provisional) 16–17 (6 June 1982). The Security Council of the United Nations passed a number of resolutions in an attempt to deal with the situation in Lebanon. Among other things, various Security Council resolutions called on the parties to the conflict to cease all military activities within Lebanon and across the Lebanese-Israeli border [S.C. Res. 508 (1982), 37 U.N. SCOR, S/PV.2374 (5 June 1982); S.C. Res. 509 (1982), 37 U.N. SCOR, S/PV.2375 (6 June 1982); S.C. Res. 516 (1982), 37 U.N. SCOR, S/PV.2386 (1 August 1982); S.C. Res. 518 (1982), 37 U.N. SCOR, S/PV.2392 (12 August 1982)]; called on Israel to withdraw its military forces to the Lebanese border [S.C. Res. 509, supra]; called on Israel to lift the blockade of or restrictions on Beirut [S.C. Res. 515 (1982), 37 U.N. SCOR, S/PV.2385 (29 July 1982); S.C. Res. 518, supra]; and condemned “Israeli incursions into Beirut”, called for Israel to return to its pre-15 September 1982 positions and called for the “strict respect of the sovereignty, territorial integrity, unity and political independence of Lebanon under the sole and exclusive authority of the Government of Lebanon through the Lebanese Army throughout Lebanon….” [S.C. Res. 520 (1982), 37 U.N. SCOR, S/PV.2395 (17 September 1982)].

Some question exists whether resolutions passed by either the Security Council or the General Assembly can be taken seriously. The United Nations is unfortunately subject to political influence to a point that its resolutions in general, and those relating to the Middle East and Israel in particular, often cannot and often are not taken as serious or objective.

⁷⁴ 37 U.N. SCOR, U.N. Doc. S/PV.2375, supra n. 73, at 3.

⁷⁵ Speech of Yehuda Blum, Representative of Israel to the United Nations, before the Security Council, U.N. SCOR, U.N. Doc. S/PV.2375, supra n. 73, at 17.

⁷⁶ For analyses concerning whether an “armed attack” is first needed in order to trigger the implementation of self-defence under the Article, see, e.g., Bowett, supra n. 72, at 187–193; Brownlie, supra n. 72, at 270–280; Brierly, J., The Law of Nations: An Introduction to the International Law of Peace (1963) 417–430Google Scholar; Schachter, supra n. 72, at 1633–1635; Shapira, , “The Six-Day War and the Right of Self-Defence”, (1971) 6 Is. L.R. 65 at 72–76Google Scholar; Feinstem, supra n. 72, at 528–536.

⁷⁷ See, e.g., Israel in Lebanon, The Report of the International Commission to enquire into reported violations of International Law by Israel during its invasion of the Lebanon (1983) 190.

⁷⁸ Id., at 15–16.

⁷⁹ Stowell, E., International Law: A Restatement of Principles in Conformity with Actual Practice (1931) 89–91Google Scholar (emphasis added).

⁸⁰ Id., at 114 (emphasis added), citing Westlake, J., International Law (1910–1913) vol. 1, pp. 312–313Google Scholar.

⁸¹ Kelsen, supra n. 51, at 62–63 (emphasis added).

⁸² 13 U.N. SCOR, S/PV. 833, at 3–4 (18 July 1958).

⁸³ Brownlie, supra n. 72, at 279; Brownlie, supra n. 58, at 731 (emphasis added).

⁸⁴ Fawcett, supra n. 45, at 388 (emphasis added).

⁸⁵ Blum, , “State Response to Acts of Terrorism”, (1976) 19 Jahrbuch für Internationales Recht 223 at 233Google Scholar.

⁸⁶ Id. (emphasis added).

⁸⁷ Id.

⁸⁸ Id.

⁸⁹ Id.

⁹⁰ Fawcett, supra n. 45, at 363. See Fitzmaurice, , “The General Principles of International Law Considered from the Standpoint of the Rule of Law”, (1957–II) 92 Recueil des Cours 5 at 173Google Scholar; Miller, , “Self-Defence, International Law and the Six-Day War”, (1985) 20 Is. L.R. 49 at 57–58Google Scholar; Feinstein, supra n. 72, at 539–540. Pirates used Spanish-held Amelia Island off the Florida coast during the early 1800's as a base from which to pillage the United States and its commerce. In 1817, the United States attacked the island, despite the fact that Spain had engaged in no military action against the United States, since Spain had not succeeded in repressing the raiders, Moore, J., A Digest of International Law (1906) vol. I, pp. 42, 173Google Scholar; Moore, id. vol. II, pp. 406–408.

⁹¹ Bowett, supra n. 72, at 188–189. See Waldock, , “The Regulation of the Use of Force by Individual States in International Law”, (1952–II) 81 Recueil des Cours 455 at 500–501Google Scholar.

⁹² Stowell, supra n. 79, at 113–114.

⁹³ Shapira, supra n. 76, at 71.

⁹⁴ Greig, D., international Law (1970) 682Google Scholar.

⁹⁵ Bowett, supra n. 72, at 191. But see Brownlie, supra n. 72, at 275–278.

⁹⁶ Bowett, supra n. 72, at 191.

⁹⁷ Id., at 189.

⁹⁸ Oppenheim, supra n. 52, at 298. A State is permitted to use force in anticipatory self-defence if, according to Higgins, Rosalyn, it “has been subjected, over a period of time, to border raids by nationals of another state, which are openly supported by the government of that state; to threats of a future, and possibly imminent, large-scale attack, and to the harassments of alleged belligerent rights….” Higgins, R., The Development of International Law Through the Political Organs of the United Nations (1963) 201Google Scholar. See Blum, supra n. 85, at 234. By analogy, the international law of neutrality may also prove a useful guide in examining the legality of measures taken to counter attacks emanating from a State which fails to prevent its territory from being used for harmful activities against other States. See Lauterpacht, supra n. 51, at 127; Brownlie, supra n. 58, at 723; García-Mora, supra n. 54, at 50. John N. Moore explained that “[i]t is well established in customary international law that a belligerent Power may take action to end serious violations of neutral territory by an opposing belligerent when the neutral Power is unable to prevent belligerent use of its territory and when the action is necessary and proportional to lawful defensive objectives”. Moore, , “Legal Dimensions of the Decision to Intercede in Cambodia”, in Falk, R. (ed.), The Vietnam War and international Law: The Widening Context (1972) vol. III, pp. 58, 71Google Scholar. See Bender, “Self-Defense and Cambodia: A Critical Appraisal”, id., at 138, 146. Myres S. McDougal and Florentino P. Feliciano elaborated on this point: “[W]here a non-participant is unable or unwilling to prevent one belligerent from carrying on hostile activities within neutral territory, or from utilizing such territory as a ‘base of operations’, the opposing belligerent, seriously disadvantaged by neutral failure or weakness, becomes authorized to enter neutral territory and there to take the necessary measures to counter and stop the hostile activities”. McDougal, M. and Feliciano, F., Law and Minimum World Public Order: The Legal Regulation of international Coercion (1961) 568Google Scholar. See, e.g., Note, “International Law and Military Operations against Insurgents in Neutral Territory”, (1968) 68 Colum. L.R. 1127 at 1129.

⁹⁹ Moore, supra n. 90, vol. II at 412. For the background regarding the incident of the Caroline, see id., at 409—411. “The reason of the thing, of course”, wrote Oppenheim, “makes it necessary for every State to judge for itself, in the first instance, whether a case of necessity in self-defence has arisen”. Oppenheim, supra n. 52, at 299.

¹⁰⁰ See Stone, supra n. 21, at 47. See also Fitzmaurice, supra n. 90, at 173.

¹⁰¹ Tucker, , “A Reply To Critics: Morality And The War”, The New York Times, 15 July 1982Google Scholar.

¹⁰² See Walzer, M., Just and Unjust Wars: A Moral Argument With Historical Illustrations (1977) 220Google Scholar; Stone, Conflict through Consensus, supra n. 63, at 79.

¹⁰³ For instance, as Oppenheim explained : “The duty of every State itself to abstain, and to prevent its agents and, in certain cases, subjects, from committing any act which constitutes a violation of another State's independence or territorial or personal supremacy is correlative to the corresponding right possessed by other States”. Oppenheim, supra n. 52, at 288. In the Island of Palmas Case (United States v. The Netherlands) (1928), United Nations, Reports of International Arbitral Awards (1949) vol. II, p. 829 at 839, Judge Max Huber opined: “Territorial sovereignty…involves the exclusive right to display the activities of a State. This right has as a corollary a duty: the obligation to protect within the territory the rights of other states, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory”.

¹⁰⁴ Blum, , “The Beirut Raid and the International Double Standard: A Reply to Professor Richard A. Falk”, (1970) 64 Am. J. Intťl L. 73 at 85CrossRefGoogle Scholar.

¹⁰⁵ Thomas and Thomas, supra n. 48, at 77–78.

¹⁰⁶ As Bowett declared: “[A] right of absolute inviolability is not conferred by [Article 2(4)] and the right of territorial integrity remains, under the Charter, subject to the rights of other states to exercise self-defence within the conditions prescribed by general international law and the Charter”. Bowett, supra n. 72, at 34. See also Hackworth, supra n. 1, vol. II at 289.

¹⁰⁷ See Garcia-Mora, supra n. 54, at 27.

¹⁰⁸ Bowett, supra n. 72, at 40.

¹⁰⁹ See Eagleton, C., International Government (3rd ed., 1957) 82Google Scholar; Dinstein, , “Legal Aspects of the Israeli Incursion into Lebanon and the Middle East Conflict”, Research Report (Institute of Jewish Affairs, June 1983) 7Google Scholar.

¹¹⁰ See, e.g., Speech of Yehuda Blum, Representative of Israel to the United Nations, to the Security Council, U.N. SCOR, S/PV.2385 (Provisional) 61 (29 July 1982):

“The position of the Government of Israel regarding the question of Lebanon has been made clear many times both in this forum and in the General Assembly. Most recently, on 26 June 1982, I stated it in the seventh emergency special session of the General Assembly in the following words: ‘Israel fully supports the restoration of the sovereignty, independence and territorial integrity of Lebanon. Israel stands for the restoration of the territorial unity of Lebanon within its internationally-recognized boundaries under the authority of its lawful Government and free from any foreign intervention’. (A/ES-7/PV.24, p. 42)

No one in the Middle East is as eager as Israel to see Lebanese sovereignty restored, its internal strife resolved…. Israel wants peace in and with Lebanon. Israel has no quarrel with Lebanon, only with those who have subjugated it.

…Israel has no territorial ambitions whatsoever in Lebanon. We do not seek to acquire even one square inch of Lebanese territory. We do not want to stay in Lebanon, or in any part thereof”.

¹¹¹ Kimche, , “Lebanon: The Hour of Truth”, Middle East Insight (May-July 1983)Google Scholar.

¹¹² “Lebanon Can Now Be Lebanon”, supra n. 18a. See Speech by Yehuda Blum, Representative of Israel to the United Nations, U.N. SCOR, S/PV. 2385, supra n. 110, at 61.

¹¹³ See Stone, supra n. 21, at 50. For historical examples of situations concerning actions directed against armed bands and not against the territorial integrity of the host State, see also Hackworth, supra n. 1, vol. VI, p. 152; Moore, supra n. 90, vol. II, pp. 405–406; Brownlie, supra n. 58, at 734; Hershey, supra n. 1, at 558.

¹¹⁴ Curtis, , “The Law of Hostile Military Expeditions as Applied by the United States”, (1914) 8 Am. J. Intťl L. 224 at 236CrossRefGoogle Scholar.

¹¹⁵ Higgins, supra n. 98, at 201. Bowett described the proportionality principle as follows: “The nature of the measures taken under the privilege of self-defence vary according to the form which the danger takes, and the criterion of the legality of the measures taken in self-defence is proportionality. The measures taken must be in proportion to the danger and must never be excessive or go beyond what is strictly required for the protection of the substantive rights which are endangered”. Bowett, supra n. 72, at 269–270. But see Dinstein, , “The Legal Issues of ‘Para-War’ and Peace in the Middle East”, (1970) 44 St. John's L.R. 466 at 474Google Scholar, wherein Yoram Dinstein points out that war, as a measure of self-defence, “once launched, does not have to be proportional to the force initially employed by the enemy”. See also Levontin, A., The Myth of International Security: A Juridical and Critical Analysis (1957) 63–64Google Scholar.

¹¹⁶ Waldock, supra n. 91, at 464. The proportionality rule, as expressed by Webster in the Caroline case, was that the exercise of a State's inherent right to self-defence must involve “‘nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it’“. Cited in Brownlie, supra n. 72, at 261.

¹¹⁷ See Blum, supra n. 85, at 235.

¹¹⁸ Id. See Gross, supra n. 18a, at 486–487.

¹¹⁹ Bowett, , “Reprisals involving Recourse to Armed Force”, (1972) 66 Am. J. Intťl L. 1 at 9CrossRefGoogle Scholar.

¹²⁰ Greig, supra n. 94, at 678.

¹²¹ See Gichon, supra n. 26, at 11. According to Dan Bavly and Eliahu Salpeter, Operation Peace for Galilee succeeded in smashing the PLO's infrastructure, destroying its state within a state. Bavly and Salpeter, supra n. 8, at 238. See Gabriel, supra n. 4, at 169–170.

¹²² Schachter, supra n. 72, at 1638. It has been suggested that public declarations of Israelis concerning a limited military action may have been tactically designed to give the appearance that the nature and objectives of Israel's operation in Lebanon were to be limited. Such a strategy may have deceived the PLO, providing a surprise factor which accorded Israeli forces a significant advantage in their battle with the terrorists. Gabriel, supra n. 4, at 69–70.

¹²³ See Fawcett, supra n. 45, at 357, 363.

¹²⁴ Tucker, R., The Just War: A Study in Contemporary American Doctrine (1960) 130Google Scholar. See Gross, supra n. 18a, at 487. But see Miller, supra n. 90, at 71.

¹²⁵ Tucker, supra n. 101.

¹²⁶ Kelsen, supra n. 51, at 83. In the final analysis, explained Tucker, “[t]he purpose of self-defense is presumably to enable nations to protect their essential rights and not to insure that their epitaph will testify to their lawful behavior”. Tucker, supra n. 124, at 128.

¹²⁷ Tucker, supra n. 101. See Tucker, , “Lebanon: The Case for the War”, (October 1982) Commentary 19 at 21–25Google Scholar.

¹²⁸ E.g., Gabriel, supra n. 4, at 51–52; Israeli, supra n. 3, at 205; Peretz, , “Lebanon Eye Witness”, (2 August 1982) The New Republic 15 at 16Google Scholar. See Speech of E. Ghorra, Representative of Lebanon to the United Nations, supra n. 3, at 602.

¹²⁹ E.g., Gabriel, supra n. 4, at 52, 132, 173; “The End Of The Fantasy”, supra n. 2, at 8; “Israel delivers a sad but necessary message”, New York Post, 21 July 1981; Eshel, supra n. 4, at 32; Statement of the Executive Council of the AFL-CIO, of 5 August 1982, cited in the Speech of Yehuda Blum, Representative of Israel to the United Nations, to the Security Council, U.N. SCOR, S/PV. 2390 (Provisional) 26 (6 August 1982). See Israeli, supra n. 3, at 205. For a vivid description of difficulties faced by Israeli forces in combatting terrorists using civilians “as protection”, see Schiff and Ya'ari, supra n. 2, at 138–140. It is not the purpose of this article to analyse the legal aspects related to the laws of war in general or to the legal status of civilians during a military conflict in particular. However, within the context of the issues under consideration, it bears mention that general international legal principles forbid the deliberate use of civilians to shield military objectives or to impede military operations in order to obtain a military advantage. The practice of using civilians as a “protective screen”, writes Jean S. Pictet, “the object of which is to divert enemy fire, [has] rightly been condemned as cruel and barbaric….” Pictet, J., Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) 208Google Scholar. With that in mind, Article 28 of the Fourth Geneva Convention of 12 August 1949 was formulated, stipulating that “[t]he presence of a protected person may not be used to render certain points or areas immune from military operations”. While certain legal obligations must be undertaken by the attacking party [see, e.g., Articles 51–58 of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of internalional armed conflicts (Protocol I)], Protocol I expanded Article 28 of the Fourth Geneva Convention to read: “The presence…of the civilan population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations…” [id., Article 51 (7)] (emphasis added).

¹³⁰ E.g., Tucker, supra n. 101. See Podhoretz, , “The Massacre: Who Was Responsible?”, The Washington Post, 24 September 1982Google Scholar.

¹³¹ Gabriel, supra n. 4, at 52, 122–123. For example, Israeli forces often postponed attack on PLO military targets placed by the terrorists in the midst of populated areas in order to drop leaflets to alert civilians of the upcoming attack. Leaflets showed how the Israelis would advance and even indicated areas free from fighting where civilians could go to safety. While dropping leaflets before an attack necessarily diminished the surprise factor by allowing the terrorists to deploy in anticipation of the advance, it succeeded in reducing civilian casualties. Id., at 173.

¹³² Tucker, supra n. 101. See Gabriel, supra n. 4, at 159, 173–176 for examples of the means and methods used by the Israeli forces to diminish the number of civilian casualties and limit property damage, often accomplished at great risk to Israeli soldiers. The strict Israeli policy of attempting to limit civilian casualties and property damage enabled the PLO to fight more effectively than would otherwise have been possible.