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Self-Defence, International Law, and the Six Day War

Published online by Cambridge University Press:  16 February 2016

Edward Miller
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Extract

      “As long as war is regarded as wicked,
      it will always have its fascination.”
      Oscar Wilde

According to the textbooks, the unfettered right of a state to go to war was, until modern times, regarded as one of the essential trappings of statehood, an indispensable aspect of sovereignty. Such a broad assertion does however require qualification, as ever since the time of Saint Augustine, scholars have attempted to set limits to the extent of the state's discretion to go to war. The task has not been an easy one, and it may indeed aptly be remarked that “Warfare has been as difficult to justify satisfactorily in theory as it has been endemic in practice”.

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Articles
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Israel Law Review , Volume 20 , Issue 1 , Winter 1985 , pp. 49 - 73
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1985

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References

1 The Critic as Artist.

2 See, for example, Glahn, Von, Law Among Nations (Macmillan, London, 4th ed., 1931) 575Google Scholar; Schwarzenberger, , A Manual of International Law (Stevens, London, 1976) 181–2Google Scholar.

3 Russell, F.H., The Just War in the Middle Ages.(Cambridge, 1975) 292Google Scholar.

4 O'Brien, W.V., The Conduct of Just and Limited War (Praeger, New York, 1981)Google Scholar Chapter Two.

5 “Just war” or bellum iustumis brought about by the coincidence of two elements — ius ad bellum, or the right to go to war, and ius in bello, or the just conduct of war. It is the former element with which we are concerned in this work.

6 See Haggenmacher, P., Grotius et la Doctrine de la Guerre Juste. (Presses Universitaires de France, Paris, 1983)CrossRefGoogle Scholar.

7 See Von Glahn, op. cit. supra n. 2, at 576 et seq.

8 See Arts. 12, 13, 15 & 17.

9 The General Treaty for Renunciation of War as an Instrument of National Policy. No. 2137, Aug. 27, 1928. Also known as the Pact of Paris, (1929) 94Google Scholar League of Nations Treaty Series 57.

10 Von Glahn, supra n. 2 at 519.

11 For application of these limitations to the Six Day War, see below.

12 See Kellogg's note to the signatories of 23rd June, 1928, and the British note of 19th May, 1928, both quoted in Stone, , Aggression and World Order (Stevens, London, 1958) 32NGoogle Scholar.

13 Ibid.

14 For a detailed discussion, see below.

15 One further point may be mentioned. It has been suggested that any attack made can be seen as an exercise of belligerent rights, as the War itself merely forms part of a continued state of belligerency between Israel and her Arab neighbours. Problems arise here due to the lack of any established international law relating to armistices. For fuller discussion of this point see O'Brien; “International Law and the Outbreak of War in the Middle East, 1967” (1968) 11 Orbis 692, 706Google Scholar.

16 Stone, J., The Middle East Under Ceasefire (Bridge, Sydney, Australia, 1967) 10Google Scholar.

17 Kelsen, , Principles of International Law, Second Edition by Tucker, R.W. (Holt, Rinehart & Winston, New York, 1967) 39Google Scholar.

18 Ibid., at 39 et seq.

19 That is to say, without prejudice to the application of other articles of the Charter or of customary law.

20 Bowett, D.W., Self Defence in International Law. (Manchester, 1958) 13Google Scholar; See also Schachter, O., “The Right of States to Use Armed Force” (1984) 82 Mich. L. R. 1620CrossRefGoogle Scholar.

21 Op. cit., supra n. 16.

22 “The Six Day War and the Right of Self Defence,” (1971) 6 Is. L.R. 65Google Scholar.

23 Speech of Abba Eban to the General Assembly, 1526th Meeting, 19/6/67, Para. 160.

24 Loc. cit. n. 23, Para. 112.

25 Palestine and International Law (Longmans, 1973) at 126Google Scholar.

26 Brownlie, , International Law and the Use of Force by States (Oxford, 1968) 278Google Scholar. For a brief review of some of the issues involved in defining “armed attack,” see Feinberg, Nathan, “The Question of Defining Armed Attack,” in Melanges en l'Honneur de Gilbert Gidel (Sirey, Paris, 1961)Google Scholar.

27 Or, in the words of Ferencz, Benjamin ((1972) 66 AJIL 491)CrossRefGoogle Scholar, “It is seemingly easier to evoke aggression than to dispel it and easier to commit aggression than to define it.”

28 The Law of the United Nations (Praeger, New York, 1951, reprinted 1964) 797–8Google Scholar.

29 (1974) 11 International Legal Materials 710Google Scholar. It seems of little importance that the Definition was adopted eight years after the Six Day War, if one accepts the view that the Definition is declaratory in nature, and purports to represent a consensus of conceptions of existing customary law.

30 Or more correctly, against sovereignty, territorial integrity or political independence or in any other manner inconsistent with the Charter. The divergence of the two texts in the use of the word “sovereignty” seems of little importance. Similarly, the absence of any reference to threat of the use of force in the Definition arises from the requirement of actual use of armed force.

31 Yost, C.W., “The Arab-Israeli War and How it Began“, (1968) 46 Foreign Affairs 304CrossRefGoogle Scholar. For a different interpretation of this incident, see Cattan, op. cit. supra n. 25, at 128.

32 Martin, P.M., Le Conflit Israélo-Arabe (Bibliothèque de Droit International, Paris, 1973) 154Google Scholar, although he does develop the point more fully in relation to the 1956 War at p. 142 et seq.

33 Op. cit., supra n. 15.

34 Op. cit. supra n. 22. Yehuda Blum does, however treat some aspects of the problem in “State Response to Acts of Terrorism” (1976) 19 German Yearbook of International Law, 223Google Scholar.

35 For the texts of these, and other draft definitions, see Stone, Aggression and World Order, op. cit. supra n. 12 at 201 et seq. See also, UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States (Principle of Non-Intervention), Resolution 2625 (XXV), 24.6.1970.

36 (1957) 35 Rev. de Dr. Int. 167 at 299Google Scholar.

37 Resolution 380(v), 308th Meeting, 17/11/1950. Also cited by Feinstein, B., “Self-Defence and Israel in International Law — A Reappraisal” (1967) 11 Is. L.R. 516, 539Google Scholar.

38 Op. cit. supra n. 26 at 279.

39 Report of Secretary General Thant to the Security Council, May 19th, 1967, (1967) 6 International Legal Materials 568, 569Google Scholar.

40 loc. cit. supra n. 23, Para. 128.

41 Ibid., Para. 119.

42 Op. cit. supra n. 26 at 367–8. Throughout, Brownlie restricts this proposition by the requirement of “proportionality.” References to this have been omitted as this will be considered in detail later. Here we are only concerned whether or not a right to self-defence exists under Article 51.

43 See Cattan, op. cit. supra n. 25 at 129.

44 See Eban, loc. cit. supra n. 23, passim, and also The Record of Aggression, (Israel Information Services, New York, July, 1967)Google Scholar.

45 Loc. cit. supra n. 39.

46 Israel and the Arab World (Beacon Press, 1976) 369Google Scholar.

47 The question of whether the closure of the Gulf of Aqaba constituted unlawful use of force will be considered later.

48 In fact, Cattan argues (op. cit. supra n. 25 at 130) that the withdrawal of UNEF was required by Egypt in order that she would be able to fulfil her defence pact with Syria if Israel invaded that country.

49 See Section II above and also, Lapidoth, R., “The Security Council in the May 1967 Crisis: A Study in Frustration” (1969) 4 Is. L.R. 3Google Scholar.

50 Loc. cit., supra n. 23, Para. 118.

51 General Assembly Official Records, 11th session, 597th Plenary Meeting, 27.11.56, para. 50.

52 Cited by Higgins, R., “The June War: The United Nations and Legal Background” (1968) 3 J. of Contemporary History 253, 262CrossRefGoogle Scholar.

53 Ibid.

54 Ibid., at 262 et seq.

55 Loc. cit., supra n. 23, Para. 129.

56 The Palestine Question, Seminar of Arab Jurists on Palestine, Algiers, 22–27 July, 1967, (Institute for Palestine Studies, Beirut, 1968) 152Google Scholar (Translation from French by E. Rizk). See also The Arab-Israeli Confrontation of June 1957. An Arab Perspective, Abu-Lughod, I. (ed.). (Northwestern U.P., Evanston, 1970) 144Google Scholaret seq. (by C. Bassiouni).

57 See Lapidoth, R., “The Red Sea and the Gulf of Aden,” in International Straits of the World (Nijhoff, 1982) 119Google Scholaret seq.

58 (1979) 18 International Legal Materials, 362CrossRefGoogle Scholar. See also (1980) 15 Is. L.R. 284Google Scholar.

59 One additional Arab claim should be mentioned. It has been suggested (e.g. by Cattan, op. cit. supra n. 25 at 133) that Israel could have no right of innocent passage to be infringed, as there was a continuing state of war. This seems to be substantially the same argument as dealt with in n. 15, and would seem to run against Article 2(4) of the Charter.

60 Op. cit. supra n. 25 at 134.

61 Plenary Session 666, 1/3/1957, Paragraph 13.

62 (1949) ICJ 4Google Scholar.

63 Op. cit., supra n. 15.

64 Ibid.

65 (1949) ICJ 4, 33–35Google Scholar.

66 The above analysis would appear to cast grave doubts on the propriety of the citing of the Corfu Channel Case by Yoram Dinstein as a justification for the Israeli incursion into Lebanon as a reply to the breach of an obligation “not to allow knowingly [the territory of a state] to be used contrary to the rights of other states,” particularly as, when condemning the British action, the Court specifically refers to “respect for territorial sovereignty [as] an essential function of international relations.” See “Legal Aspects of the Israeli Incursion into Lebanon and the Middle East Conflict,” in Institute for Jewish Affairs Research Report, June, 1983, no. 9, pp. 1, 7Google Scholar.

67 Op. cit. supra n. 46 at 370.

68 For example, Brierly, , The Law of Nations (Oxford, 6th ed., 1963) 417Google Scholar.

69 Op. cit. supra n. 28 at 791–2.

70 Op. cit. supra n. 68 at 420.

71 That is, after the first comma. We should not pre-judge the issue of the interpretationof the words “if an armed attack occurs.” If these words are considered to express hypothesis, it would be more correct here to refer to the “third clause,” as the words above would themselves constitute the second (relative) clause of the Article!

72 Op. cit. supra n. 26 at 273. See also Sorenson, , Manual of Public International Law (New York, 1968) 767CrossRefGoogle Scholar.

73 Henkin, L., How Nations Behave (New York, 2nd ed., 1979) 143Google Scholar.

74 Ibid.

75 “The United Nations and its Supporters; A Self Examination,” (1978) 78 Pol. Sci. Q. 504, 532Google Scholar, quoted op. cit., supra n. 73; See also Schachter, op. cit. supra n. 20 at 1634.

76 Op. cit. supra n. 26 at 274 & 279–80.

77 ibid.

78 Quoted in O'Brien, op. cit. supra n. 4 at 132.

79 ibid.

80 ibid.

81 Brownlie cites the case of the German attack on the Soviet Union, at Nuremburg, and that of Japan against Holland regarding the Netherlands East Indies, before the Military Tribunal for the Far East, op. cit. supra n. 26 at 258.

82 See Feinberg, N., On an Arab Jurist's Approach to Zionism and the State of Israel (Jerusalem, 1971) 102–3Google Scholar.

83 Richard II, v. iii. 42.

84 Quoted in Brownlie, op. cit. supra n. 26 at 261.

85 Ibid.

86 For example, by Feinstein, op. cit. supra n. 37 at 537.

87 Op. cit. supra n. 22 at 269.

88 See Blum, op. cit. supra n. 34 at 235.

89 Street on Torts, (Butterworths, London, 7th ed., 1983) 70Google Scholar.

90 See, for example, Smith, & Hogan, , Criminal Law, (Butterworths, London, 5th ed., 1983) 361–2Google Scholar.

91 Turner v. Metro Goldwyn Mayer [1950] 1 All E.R. 499, 571, quoted by Street, loc. cit. n. 89, note.

92 The ineptitude of the principle of proportionality is further demonstrated, if, as will be argued below, it is realised that any use of a right of self-defence necessarily involves an advance evaluation of the attacker's future action.

93 Op. cit. supra n. 22 at 217–9.

94 See Stone, op. cit. supra n. 16 at 5–6.

95 Although this was of course requested later by the well known Resolution 242.

96 Apologia pro Vita Sua.

97 Notably, Cattan, op. cit. supra n. 25 at 131–2.

98 The only pro-Israel writer who develops a literal interpretation of “armed attack” to any extent is Stone, op. cit. supra n. 16.

99 For an application of these ideas in a contrast of self-defence with reprisal, see Kalshoven, F., Belligerent Reprisals, (Sijthoff, 1971) 26–7Google Scholar, where the author discusses the preemptive nature of self-defence as a contrast to the retributive and coercive nature of reprisals, to which the principle of proportionality correctly applies. See also, Blum, op. cit. supra n. 34.