The session was part of the ICT's 16th World Summit on Counter-Terrorism: "Unpuzzling Terrorism". Old laws of warfare do not apply to the current asymmetric threat Israel faces. Although frameworks currently exist in the international community for the use of force, it is the application of force that poses the biggest dilemma. Cross border, non-state actor threats and tunnel incursions all create situations where the use of force may be justified, but the application of that force must be measured and within international norms. The law enforcement paradigm, instead of the military solution, would be best suited to safeguard security interests and maintain international support.
Co-Chair: Prof. William C. Banks, Founding Director, Institute for National Security & Counter Terrorism (INSCT) and Professor of Law & Public Administration and International Affairs, Syracuse University & Member of the Professional Advisory Board, ICT, IDC Herzliya, United States of America
Co-Chair: Dr. Daphné Richemond-Barak, Senior Researcher & Head, International Humanitarian Law Desk, ICT & Assistant Professor, Lauder School of Government, IDC Herzliya, Israel
Interview with: Maj. Gen. (Res.) Yoram “Yaya” Yair, Former Commander of the Lebanese Sector & Syrian Front and Former Chairman of the Committee that wrote the IDF Code of Ethics on: “Strategic and Operational Factors Influencing the Decision to go to War”
Col. (Res.) Adv. Daniel Reisner, Former Head, International Law Branch of the IDF Legal Division & Associate, ICT, IDC Herzliya, Israel
Prof. Nathan Sales, Associate Professor, College of Law, Syracuse University, United States of America
Maj. Gen. (Res.) Yair answered the question of who decides when to go to war in Israel by saying that in Israel, as a democracy, this decision is made by the government and approved by the Knesset. However, Maj. Gen. (Res.) Yair emphasized that war has not existed for the last several decades. Nowadays, we are facing an asymmetrical conflict.
Maj. Gen. (Res.) Yair explained that the rules have changed, justifying war belongs to engagement between states, entities that accepted the UN charter. When dealing with entities such as ISIS and Al Qaeda, states cannot rely on old laws.
Adv. Reisner focused on three main issues emphasizing the problems of international law during state of war. The first is the accusation for disproportionate response made by many in the international community against Israel. According to the laws of war, during wartime, there is no legal requirement for proportionate response. Adv. Reisner explains that the allegations can be political in nature or part of a claim that the Israeli response was not legally allowed because it was not during time of war. Adv. Reisner determined that response needs to be proportionate to the level of violence.
Adv. Reisner also presented the modern thresholds for war: state vs. non-state entities; escalation into full-scale fighting; escalation from airstrikes to ground warfare. These issues, according to Adv. Reisner, are yet to be included in the international law.
Adv. Reisner also discussed the rule of self-defense. Adv. Reisner raised important questions concerning this issue, including what can be allowed as part of self-defense?
Prof. Blank focused on the specific scenarios of cross-border attacks and the law of resorting to force. According to Prof. Blank, there are well-established frameworks for use of force, application is what is difficult.
Conflicts of non-state groups against states raise interesting questions about the use of force in conflicts and how we characterize the situation. Anytime cross-border attacks involve the territory of another state, one needs to consider their sovereign rights, to consent of that state, or to be able to satisfy the rights of that state. Ideally, according to Prof. Blank, one could get approval in this regard from the UN.
Prof. Blank concluded saying that we must try to focus on what is happening rather than where the conflict is located. The Jus ad bellum is still going to ultimately guide the question in the use of force, meaning if there is not an armed conflict, then how are you able to use force in order to contain the non-state actor? In this case, you have to use a law enforcement paradigms.
Prof. Sales focused on the ongoing conflict with ISIS and the use of force against the organization under international and domestic law, discussing article 51 of the UN charter, purporting the inherent right to self-defense and dealing with the circumstances in which use of force is justified.
There are three situations where force is justified: imminent attack, preemptive attacks and continuing threat. In the case of the conflict with ISIS this is not clear, unlike the conflict with Al-Qaeda.
Prof. Sales also discussed the US domestic law in regards to justifying legal authorization of use of force, focusing on the 2002 Authorization for Use of Military Force (AUMF) US Congress authorization against Iraq allowing the president to use continued force against enemies in Iraq. According to Sales, under this authorization, ISIS could be considered an Iraqi threat.
Dr. Richemond-Barak focused on a very specific situation of underground warfare, stating that tunnel warfare is reemerging on the contemporary battlefield and tunnels, including cross-border tunnels, constitute a global threat. The tunnels are used for different reasons (protection from drones as one reason) and therefore the threat is widespread and is very popular for use by non-state actors that are militarily inferior to their enemies.
Dr. Richemond-Barak also discussed the legal analysis required in different scenarios and its influence on legal justification to go to war. According to Dr. Richemond-Barak, tunnels may trigger war when: tunnels amount to an armed attack or the tunnels have created the necessary conditions for the exercise of anticipatory self-defense by the victim state. Dr. Richemond-Barak concluded by saying that the law must allow the victim state to safeguard its security interests and its right to sovereignty and territorial integrity.