Alexander Levkovich Military Reponse Againt Non State Actors and Their Hosts

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Unity in the United Nations through Natural

Law in the Battle against International

Terrorism

Excerpt from Thesis

Sec. III. Important Issues, (D) The Response

Military Response against Non-State Actors and Their Hosts under

Humanitarian International Law

- with a Note on 2007 Israel-Hezbollah War

LL. M. Thesis by Alexander Levkovich, June 2008

George Washington University Law School



Table of Contents

I. Military Response against Non-State Actors and Their Hosts under

Humanitarian International Law 2

(A.) Attacking Non-State Actors 2

(B.) Attacking the Host State Because of Non-State Actor Actions 7

(1.) Current Status of Attribution Laws 7

(2.) Full Attribution for “Harboring” State 10

(3.) Partial Attribution for “Harboring” State 14

• Note on The Unique Nature of the Israel-Hezbollah War

19

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I. Military Response against Non-State Actors and Their Hosts under

Humanitarian International Law

Prior to the emergence of the terrorism threat to international peace and security,

the ability to violate another state’s sovereignty in order to defend against non-

state actors required attribution of their acts to that state.1 This required that the

state exercise a certain level of control over the aggressive actions of the non-state

actor in order to legally justify under international law the recourse to force against

that state.2 In modern jurisprudence, the emergence of non-state actors, operating

independent of states and capable of inflicting damage to the same extent, changes

the dynamic for a state in deciding how to respond in defense of their security.

There are two separate areas of application that must be addressed by international

law to help define the limits of action by a victim state: first is the permissibility to

directly attack elements of the non-state actor operating in a foreign land; second,

are the conditions under which attacking the host state itself becomes permissible.

(A.) Attacking Non-State Actors

In the previous section, the applicability of Article 51 to non-state actors has been

established from the position of the concept of an “armed attack” applying also to

non-states. There is sufficient consensus in state practice and opinio juris to suggest

that this is accepted under customary international law.3 Given this reality, the

burden then shifts to the defending state that has just been subjected to an armed

attack to determine how best to exercise its right of self-defense. Because the host

state is not directly responsible for the “armed attack,” this creates a clash between

two fundamental principles in international law: the territorial integrity of the host

state and the right to self-defense of the defending state. In turn, given this

challenge to the right of self defense, this necessitates a clarification of the right

and its scope of permitted behavior for the defending state.

This section will highlight the emergence of this confrontation of principles, and will

demonstrate how through their reconciliation, the right of self-defense emerges as a

1 Alexander Levkovich, Unity in the United Nations through Natural Law in the Battle against International

Terrorism, section III(D)(2) (June 2008) (LL.M. thesis, George Washington University Law School) (on file with

author).2 Id.3 See id. at section III(B)(1).

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clear guide for states dealing with the emerging threats from non-state actors.4

First, it will be demonstrated how, through the progressive evolution of UN

resolutions addressing the right to attack non-state actors, the permission to

respond clearly evolves parallel to the emergence of the terrorist threat. Further,

persuasive authority in conjunction with recent state practice will confirm the

strengthened survival of the right of self-defense. Finally, from an analytical

viewpoint, the ability for self-defense to overcome another state’s territorial

integrity will be demonstrated as logically superior.

A brief overview of certain UN Resolutions that bring to light the friction between

the right of self-defense and territorial integrity reveals a pattern that begins with a

complete submission of the former to the latter, and concludes with the emergence

of self-defense as superior. In 1968, an Israeli attack on the Beirut airport in

response to a violent attack two days earlier by a terrorist organization against an

Israeli El Al airline at the Athens airport was unanimously condemned by the UNSC.5

This clearly indicated the inferiority of the right of self-defense. Later on, in 1982,

Israel made a full-scale invasion of Southern Lebanon, claiming that Lebanon had

“lost much of its sovereignty over its own territory to the terrorist PLO”6 and had

failed to discharge a legal “duty to prevent its territory from being used for terrorist

attacks against other states….”7 A series of resolutions throughout the year

generally asked “that Israel withdraw all its forces forthwith,”8 expressed alarm at

“Israel’s acts of aggression,”9 and reaffirmed the fundamental principles of

Lebanese “sovereignty, territorial integrity, unity, and political independence.”10

Although this clearly manifested the superiority of the Lebanese right to territorial

integrity, a final resolution from the General Assembly in mid-December that

unanimously called for the restoration of “the exclusive authority of the Lebanese

4 See Allen S. Weiner, The Use Of Force And Contemporary Security Threats: Old Medicine For New Ills?, 59

STAN. L. R EV. 415 (explaining how a clear rule would remove the tension between territorial integrity and right of

self defense).5 S.C. Res. 262, U.N. Doc. S/RES/262 (December 31, 1968) (emphasis added).6 See THOMAS M. FRANCK , R ECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACKS 57 n. 20(Cambridge University Press 2004) (quoting S.C.O.R. (XXXVII), 2331 Meeting, 23 February 1982, at 5, paras. 46,

49).7 Id. at n. 21 (quoting S/15132, Letter dated 27 May 1982 from the representative of Israel to the Secretary General).8 Id. at 58 n. 21 (quoting S.C. Res. 509, U.N. Doc. S/RES/509 (June 6, 1982)); see also id. at 59 n. 31 (citing G.A.

Res. ES-7/5, U.N. Doc. A/RES/ES-7/5 (June 26, 1982)).9 Id. 10 Id.

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State throughout its territory up to the internationally recognized boundaries,”11

also “took note” of the decision of the Lebanese Government to expel all PLO forces

from its territory.12 Thomas Franck suggests that by at least implicitly indicating that

the presence of PLO bases in Southern Lebanon as a basis for the occupation, the

United Nations had “taken note” of Israel’s right to defend itself from attacks

originating from non-state actors operating from Lebanon.13

Even though there were resolutions afterwards that completely re-affirmed the

superiority of territorial integrity over self-defense,14 the seeds were planted there

by the United States’ referral to the applicability of Article 51 in these

circumstances.15 The superiority of the right of defense finally emerged as a result

of the growing ability of non-state actors to conduct armed attacks, as highlighted

in UNSC Resolutions 1368, 1373, and 1701.16 This re-establishing of the right of self-

defense as above territorial integrity can be advocated as customary international

law based on the increasing support this principle has received.17 Moreover, the

11 Id. at n. 34 (quoting G.A. Res 37/123, § E, U.N. Doc. A/RES/37/123 (December 16, 1982)). Only Israel and the

U.S. opposed the resolution. Id.12 Id. at n. 30 (citing 1982 U.N.Y.B. 452).13 Id. at 59.14 In 1985, after terrorist attacks by the PLO, Israel retaliated by bombing its headquarters in Tunisia. The Security

Council passed a resolution stating that it “[condemned] vigorously the act of armed aggression perpetrated by Israel

against Tunisian territory.” See Weiner, supra note 4, at 435 n. 73 (citing S.C. Res. 573, ¶ 1, U.N. Doc. S/RES/573

(October 4, 1985)).15 The resolution was adopted by a vote of 14-0 with the U.S. abstaining. The U.S. Permanent Representative to theUnited Nations explained that “[we] recognize and strongly support the principle that a State subjected to continuing

terrorist attacks may respond with appropriate use of force to defend itself against further attacks. This is an aspect

of the inherent right of self defense recognized in the Charter of the United Nations.” Id. (emphasis added) (quoting

U.N. SCOR, 40th Sess., 2615th mtg. at 22, U.N. Doc. S/PV. 2615 (Oct. 4, 1985)).16 See infra section I(B)(1) and accompanying text explaining the three distinct relations between a host state and a

non-state actor (“(1) the host is enabling the activities of the guest below the “overall control” standard and is

unwilling to control it; (2) the host is permitting the use of its territory and unwilling to confront the guest; (3) thehost is unable to control the activities of the guest”).17 A special situation arises where a State is incapable of impeding acts of terrorism committed by those making use

of its territory. Even if these acts are not attributable to the State, “the State victim is not precluded from reacting by

military means against the terrorists.” See 1 THE CHARTER OF THE U NITED NATIONS – A COMMENTARY, 802, para. 36 (B.

Simma ed., 2d ed. 2002) [hereinafter Simma, COMMENTARY O N UNC]; see also Armed Activities on the Territory of

the Congo (Dep. Rep.Congo v. Uganda), Merits, 2005 I.C.J R EP. 116, para. 37 (2005) [hereinafter Congo Decision](Separate Opinion of Judge Kateka). For purposes of defending against an “armed attack,” the State acting in self

defense is allowed to trespass on foreign territory, even when the attack cannot be attributed to the state from whoseterritory it is proceeding. See YORAM DINSTEIN, WAR , AGGRESSION A ND SELF DEFENSE 216 (3d ed., Cambridge

University Press 2001). The U.S. view is that the State’s right to self defense is not overridden by another state’s

territorial integrity from which the terrorists are operating. See Weiner, supra note 4, at 442; see also Ruth

Wedgwood, Responding to Terrorism: The Strikes Against bin Laden, 24 YALE J. I NT’L L. 559, 565 (1999) (arguing

that the United States had the right to attack Al Qaeda facilities in Sudan and Afghanistan following the 1998 East

Africa Embassy Bombings; where a country “permits the use of its territory as a staging area for terrorist attacks,”

the territorial state cannot expect to insulate its territory against measures of self-defense).

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international silence to state actions over the past few decades confirms the

emergence of this principle in practice under legitimate circumstances.18

Finally, if the theoretical justification for the application of traditional laws of self-

defense to inter-state conflicts is extended to extra-state conflicts, this further

confirms the superiority of the right of self-defense. For example, say two states are

involved in a conflict, where Oceana is the aggressor and Britania is the other

reacting in self-defense. In such a case, Britania’s right of self-defense is pinned

directly against Oceana’s territorial integrity interest, and international customary

law clearly dictates the dominance of Britania’s rights. The resulting question is why

does the self-defense interest of Britinia override the territorial integrity of Oceana?

The answer is that it is either as a means of preserving Britinia’s survival through its

inherent right of self-defense, or as a means of punishing Oceana for being the

aggressor.19

If the first possibility is accepted, it clearly advocates for the right of self defense to

apply to non-state actors operating within innocent states. Since Britania’s inherent

right of self- defense allows it to overcome Oceana’s territorial integrity, even if the

self defense right is aroused by non-state actors, the territorial integrity is still

inferior. However, if the second possibility is accepted, and the reason Britania can

respond is because Oceana’s culpability lessens its territorial integrity rights, then

any right of self-defense action against a non-state actor would be dependent onthe culpability of the host. Yet, if such a rule is to exist, then it serves as an obstacle

to any type of effective battle versus international terrorist organizations. If they are

permitted sanctuary in foreign lands by principles protecting sovereignty, states are

blocked from legally pursuing greater interests of a global nature. Moreover,

Glennon suggests that if a state attacked by a non-state actor is not allowed to

18 See Steven R. Ratner, Jud as Bellum and Jus in Bello After September 11, 96 AM. J. I NT’L L. 905, 910 (2002)

(explaining how international silence to armed measures is highly significant as an indication of something from

tolerance to embrace); see also FRANCK , supra note 6, at 95 (citing the bombing of Al Qaeda camps in Sudan); id. at

65 (highlighting that in the 1990s, Senegal invaded Guinea-Bissau, Thailand, conducted incursions into Burma, andTajikistan pursued irregulars into Afghanistan); Weiner, supra note 4, at 442 n. 98 (referencing many instances

where U.S. forces have been operating in foreign countries in pursuit of terrorists - Afghanistan, Yemen,Philippines, Republic of Georgia). Regarding Turkey fighting the PKK, see Jackson Diehl, A Friendship Revived ,

WALL ST. J. EUROPE, Jan. 15, 2008 ("Finally, on Nov. 5, [2007] President Bush met the Turkish prime minister at the

White House and made a long-overdue decision: The U.S. would share tactical intelligence on the PKK with Turkey

and tolerate attacks on Iraqi territory." ) available at http://online.wsj.com/article/SB120034472880889217.html?

mod=googlenews_wsj (retrieved on Nov. 26, 2008). See also Turkey Hits PKK in Northern Iraq, CNN.COM,

http://edition.cnn.com/2007/WORLD/europe/12/16/turkey.kurds/index.html (Dec. 17, 2007).19 Really, it is a combination of both to an extent, but one would have to have more influence.

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respond, its territorial integrity is violated by being forced to do nothing under

international law.20

In sum, the inherent nature of the right of self-defense coupled with the demands of

the modern realities of international threats to peace and security suggest the

emergence of a rule that allows states to violate the “territorial integrity and

political independence”21 of sovereign states when attacked by hostile non-state

groups from their lands. This rule is focused strictly on responding against the non-

state groups themselves within the bounds of internationally recognized standards

of necessity and proportionality, independent of the fact that they are operating

inside another state. This principle reflects the preference to understand the theory

of self-defense as more connected to alleviating the victim than punishing the

aggressor. However, when the host does share culpability for the actions of the non-

state actor, it summons international rules that then exposes the host to response.

The next section discusses issues raised regarding the culpability of states that host

non-state actors conducting armed attacks.

(B.) Attacking the Host State Because of Non-State Actor Actions

This section seeks to clarify to what extent an attacked state can defend itself using

force against the host state, separate from its measures against the non-state

actor. At its root, the answer depends mainly on the relationship between the non-

state actor and the host state, and to what extent the host contributed to the

attack. From a legal standpoint, international customary law requires proper

attribution of the acts of the non-state actor to the host in order for the host to be

held equally culpable.22 However, a difficulty arises in finding a consensus on the

current laws of legal attribution, considering the emergence of attacks both in

quantity and quality stemming from non-state actors. Recent developments in

international armed conflict have thrown the old attribution rules into disarray, and

have warranted a reconsideration of the law. 23

20 See Michael J. Glennon, The Fog of War: Self-Defense, Inherence, and Incoherence in Article 51 of the United

Nations, 25 HARV. J.L. & PUB. POL’Y 539, 550 (2002) [hereinafter Glennon, Fog of War ].21 U.N. Charter art. 2, para. 4.22 See infra section I(B)(1).23 In view of the recent development of international terrorism, the rule [Attribution] is too sweeping. See Simma,

COMMENTARY ON UNC, supra note 17, at 801, para. 33 (quoting Military and Paramilitary Activities in and Against

Nicaragua (Nicar. v. U.S.), Merits, 1986 I.C.J R EP. 14, 543 (1986) [hereinafter Nicaragua Decision] (Dissenting

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Furthermore, it is highly feasible to have a situation where the legal threshold of

attribution is not met, but the host state has still violated international law with its

relationship to the non-state actor operating from its territory. There is very strong

international customary law on the illegality of “acquiescing” to the presence of

terrorist organizations in a country’s territory. Even if there is no legal attribution, it

is still possible to have a “partial attribution” due to the illegality of the state’s

behavior. In such a situation, factors such as the extent of the state’s culpability in

respect to the law and the gravity of attacks made by the non-state actor all

contribute to deciding how a victim state may respond.

(1.) Current Status of Attribution Laws.

According to international customary law, legal attribution of the acts of a non-state

actor to a host state is required in order to permit a victim state to resort to force

against the host.24 The two traditional standards in opinio juris are the “effective

control” test from the ICJ in Nicaragua, and the “overall control” test from ICTY in

Tadic. 25 However, in practice, these standards are very difficult to meet and have

received a lot of criticism because they prevent states from holding others

responsible for large-scale armed attacks stemming from their territories. 26 This

becomes increasingly critical in light of the emergence of threats posed by

international terrorist networks that greatly depend on having bases of operation

within other countries. Therefore, recent debate in opinio juris has focused on the

creation of a more lenient standard for attribution – “harboring” non-state actors –

which commands that greater pressure be placed on states to prevent the

operations of terrorist groups on their shores.

Opinion of Judge Jennings)).24 See id. at 800, para. 31 (citing Nicaragua Decision, supra note 23, at para. 195 (citation omitted) as reflecting

international customary law).25

See infra the “Effective Control” test from the ICJ in Nicaragua Decision, supra note 23, and the “OverallControl” test from ICTY in Prosecutor v. Tadic, No. IT-94-1-A, 38 I.L.M. 1518, para. 131 (1999) [hereinafter Tadic

Appeal] available at http://www.un.org/icty/tadic/appeal/judgement/tad_aj990715e.pdf.26 The threshold established in the Nicaragua case for attribution “has been subject to increasingly severe criticism

ever since it was established in 1986.” See Stephen Mathias, Current Developments: The 2005 Judicial Activity of

the International Court of Justice, 100 AM. J. I NT’L L. 629, 639 (2006) (quoting Congo Decision, supra note 17,

para. 25 (Separate Opinion of Judge Kooijmans)); see also Simma, COMMENTARY O N UNC, supra note 17, at 801,

para. 33 (stating that if the standards are interpreted strictly, then that would result in a reality where states are not

adequately protected by Art. 51 from force committed by states in an indirect manner, and the very purpose of Art.

51 would be eroded).

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Since the articulation of the “effective control” standard by the ICJ in Nicaragua,27

there has been a steady criticism of the approach that has led to its softening. This

tough standard required the state to have operative control over all the relevant

activities of the non-state groups, and they had to provide “specific instructions” on

how to conduct their armed attacks.28 The first major reduction of the doctrine was

in the 1999 ICTY case, Prosecutor v. Tadic, which introduced the “overall control”

standard as an alternative. 29 It changed the required level of control from

“effective” to a lesser standard of “having a role” in the different phases of military

planning and acting. It also took away the requirement of having to provide

instructions.30 Nevertheless, the gravity of the emerging threats posed by

international terrorism has highlighted the deficiency of this standard in reasonably

assigning culpability to host-states, and has led to the emergence of the

“harboring” standard.

Once the relationship between the host state and the non-state actor falls below the

threshold established in the two standards above, it generally falls into the category

of situations where the state is “unwilling or unable” to control its guest. The

“harboring” standard that has been offered as a further extension of the attribution

laws refers to only a portion of the types of interactions covered by the “unwilling or

unable” criterion. Therefore, prior to defining the exact scope of the “harboring”

standard, it is necessary to first clarify the different types of relationships within the

“unwilling and unable” framework. Generally, they can be split into three distinct

relations: (1) the host is enabling the activities of the guest below the “overall

control” standard and is unwilling to control it; (2) the host is permitting the use of

27 The Nicaragua Court held the actions of Nicaragua contras could not be imputed to the U.S. because there were

no specific instructions to them. Simma, COMMENTARY ON UNC, supra note 17, at 801, para. 32 (emphasis added)(quoting Nicaragua Decision, supra note 23, at 62-65, paras. 110-115). The ICJ ruled that simply supplying

weapons or logistical support cannot be considered enough involvement to have the actions of the non-state actors

attributed to the State. Id ; see also Ratner, supra note 18, at 908.28 The Nicaragua Court held the actions of Nicaragua contras could not be imputed to the U.S. because there wereno specific instructions to them. Simma, COMMENTARY ON UNC, supra note 17, at 801, para. 32 (emphasis added)

(quoting Nicaragua Decision, supra note 23, at 62-65, paras. 110-115). The ICJ ruled that simply supplyingweapons or logistical support cannot be considered enough involvement to have the actions of the non-state actors

attributed to the State. Id ; see also Ratner, supra note 18, at 908.29 See Tadic Appeal, supra note 25, para. 145 (holding that acts of the Bosnian Serb army could be imputed to

Serbia because Serbia has exercised “overall control” over them).30 The Appeals Chamber of the ICTY adopted a laxer standard based on “overall control.” This exists when a state

“has a role in organizing, coordinating, or planning the military actions of the military group, in addition to

financing, training and equipping or providing operational support to that group. Id.at para. 137. It is not necessary

under this standard for the sponsoring state to actually issue instructions in order for them to be held responsible for

the acts of the Non-State groups. See generally Weiner, supra note 4, at 432 nn. 54-59.

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its territory and unwilling to confront the guest;31 (3) the host is unable to control

the activities of the guest.

The “harboring” standard for the purposes of this discussion is to encompass the

first two relations where the host affirmatively, either by action or by omission,

allows the non-state actors to conduct operations from its territory.32 This theory

has been labeled the “Bush Doctrine” and effectively imputes responsibility based

on the toleration of such acts by the host.33 It includes situations where the host

passively tolerates the presence of the non-state actors, without actively sponsoring

them.34 It also implies that the host is capable of removing the non-state actor, or to

some extent hindering its activities without inflicting substantial harm upon its own

country.35 “Harboring” does not, however, include situations where the government

can do very little to prevent the activities of the non-state actor.36

The question of whether “harboring” terrorist organizations is enough to attribute

their acts to the host state is a question of the extent to which the host should be

punished for its role in allowing the group to operate. On one end of the argument is

the claim that the state is as guilty as the non-state actors. The other end, however,

seeks to distinguish between “complicity” and “imputation”, and assign lesser

blame to the complicit state actor than the one attributed with the attacks.

Consequently, the former “attributed” or “imputed” state is exposed to comparable

31

There is a distinction between deliberately allowing groups access to the territory, and enabling groups to actagainst another state. See Oil Platforms (Iran v. U.S.), Merits, 2003 I.C.J R EP. 161, para. 51 (2003) [hereinafter Oil

Platforms].32 See S.C. Res. 1373 pmbl., U.N. Doc. S/RES/1373 (September 28, 2001) [hereinafter UNSC 1373]

(“ Reaffirming …that every State has the duty to refrain from organizing, instigating, assisting or participating interrorist acts in another State or acquiescing in organized activities within its territory directed towards the

commission of such acts.”).33 See Ratner, supra note 18, at 908 (emphasis added).34 See UNSC 1373, supra note 32, at pmbl. This traditionally has been outside the scope of the attribution doctrine.

See DINSTEIN, supra note 17, at 213.35

Compare Pakistan Tribesmen Fight Taliban, Al Qaeda, CBSNEWS.COM (Oct. 13, 2008)

http://www.cbsnews.com/stories/2008/10/13/terror/main4516621.shtml (case of Pakistan fighting Al Qaeda) withState Sponsor: Syria, COUNCIL ON FOREIGN R ELATIONS, intro., available at http://www.cfr.org/publication/9368/

(updated Feb. 2008) (“Syria continues to be categorized as a state sponsor of terrorism, since its first designation in1979. According to the State Department, Syria’s government supports U.S.-listed terrorist groups and allows some

of these organizations such as Hamas and Palestinian Islamic Jihad to maintain headquarters in Damascus. The2006 State Department Country Report says the Syrian government remains an active supporter of Hezbollah and

has a covert presence in Lebanese politics.”).36 See Simma, COMMENTARY O N UNC, supra note 17, at 802, para. 36 (explaining that a special situation arises when

a State is incapable of impeding acts of terrorism committed by those making use of its territory); see also Ben N.

Dunlap, State Failure and the Use of Force in the Age of Global Terror, 27 B.C. I NT'L & COMP. L. R EV. 453, 458-59

(2004) (discussing the situation where the Government has lost effective control of its territory or is a failed state

(emphasis added)).

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defensive action as the non-state actor, and the latter “complicit” or “partially

attributed” state would warrant a lesser response under international law. This

leads to two issues to be discussed in turn: first, under customary international law

can states “harboring” terrorists be attributed with their attacks; and second, if they

cannot, does Article 51 or customary international law permit the use of force

against the partially-attributed state?

(2.) Full Attribution For “Harboring” State

The “Bush Doctrine” is in part an assertion that nations harboring terrorists are as

guilty as the terrorists themselves.37 This is supported persuasively by SC Res.

1368, which “stresses that those responsible for aiding, supporting or harbouring

the perpetrators, organizers and sponsors of these acts will be held accountable;”38

Moreover, SC Res. 1373 recognizes, as customary international law, the principle

that “every State has the duty to refrain from organizing, instigating, assisting or

participating in terrorist acts in another state or acquiescing in organized activities

within its territory directed towards the commission of such acts.”39 The issue that

requires clarification is whether “being held accountable” in violation of the “duty to

refrain from … acquiescing in organized activities of [terrorist organizations]”

warrants full attribution.

This position has been advocated initially by the U.S. Government after 9/11 as a

reflection of what it felt was necessary for international law to combat this new

world threat, and was supported through the acts and statements of countless

states worldwide in addition to the UNSC resolutions above.40 The Bush Doctrine

states that “any nation that continues to harbor or support terrorists will be

regarded by the United States as a hostile regime.”41 U.S. 2002 National Security

37 Benjamin Langille, It’s “Instant Custom:” How the Bush Doctrine Became Law After The Terrorist Attacks of September 11, 2001, 27 B.C. I NT’L & COMP. L. R EV. 154, n. 3 (2003).38

See S.C. Res. 1368, ¶ 3, U.N. Doc. S/RES/1368 (September 12, 2001) [hereinafter UNSC 1368].39 See UNSC 1373, supra note 32, at pmbl. The Resolution prefaced the articulation of the principle with clear

intent to demonstrate its binding legal value. Id. (“ Reaffirming the principle established by the General Assembly inits declaration of October 1970 (Resolution 1189 (XXV)) and reiterated by the Security Council in its resolution

1189 (1998) of 13 August 1998, namely that every State has the duty…[see text quoted above].” (emphasis added)).40 See Langille, supra note 37, at 145 n. 5 (quoting America Responds, THE WHITE HOUSE (Sept. 2001),

http://www.whitehouse.gov/news/releases/2001/09/resources.html) (last visited Nov. 29, 2001) (saying how this was

in conjunction with greater support for the war on terrorism generally).41 President George Bush, Address Before a Joint Session of the Congress on the United States Response to the

Terrorist Attacks of September 11, 2 PUB. PAPERS 1140, 1141 (Sept. 20, 2001) [hereinafter Bush September 20th

11



Strategy claimed that the U.S. will disrupt and destroy terrorist organizations in part

by destroying “sanctuary to terrorists by convincing or compelling states to accept

their sovereign responsibilities.”42 Also, in a 2003 speech, the then director of the

State Department Policy Planning Staff argued that force could be used against

states that harbor terrorists in their territories.43

In addition to the American support for this standard, the UNSC has

articulated very comprehensive guidelines for states in combating terrorist

organizations that suggest that force can be used. It has articulated all the different

obligations States have toward suppressing terrorist activities. In relevant part, it

commends that States shall: “(a) refrain from providing any support, active or

passive …”, “(c) deny safe havens…”, and “(d) prevent those [terrorist groups] from

using their respective territories....”.44 Pointedly, it also states in (c) that there is a

duty to “deny safe havens to those who … provide safe havens,” which is an exact

microcosm of the case here, where states are seeking to prevent other states from

providing safe havens.45 This reflects the idea that the host should also be fair game

because the wrongdoer’s capability to do harm depends on the indifference of the

host, which can simply withdraw its hospitality.

Two other practical factors that contribute to imputing greater responsibility

to the host state are the international disrepute of the specific non-state actor

involved and the potential for large-scale destructions stemming from them.

Schachter suggests that, when dealing with international terrorists which are

universally condemned and provided some type of support from states, which

should be a factor in determining a state’s culpability.46 Also, defending states are

given greater leeway in assigning blame to host states because of the gravity of the

Address].42 See NATIONAL SECURITY STRATEGY September 2002, at 6 available at http://georgewbush-

whitehouse.archives.gov/nsc/nss/2002/ (Sept. 2002) (emphasis added).43 Richard N. Haass, Dir., Policy Planning Staff, U.S. Dep’t of State, Sovereignty: Existing Rights, Evolving

Responsibilities, Remarks at Georgetown University (Jan. 14, 2003) available at

http://www.state.gov/s/p/rem/2003/16648.htm.44 See UNSC 1373, supra note 32, para. 2.45 See Simma, COMMENTARY O N UNC, supra note 17, at 802, para. 33 (stating that offering a safe haven for groupsafter they have conducted attacks cannot be considered different from “sending on behalf” under the “effective

control” standard); see also id. at 799, para. 29 (quoting Definition of Aggression, supra note 27, at art. 3(e))

(stating that allowing the use of territory by another state to perpetuate an act of aggression against a third state can

also be considered aggression. Such aggression must reach the level of an ‘armed attack’ and that permission to use

the territory is voluntary rather than a neglect to prevent the use of territory).46 See Oscar Schachter, The Lawful Use of Force By a State Against Terrorists In Another Country, in ISRAEL

YEARBOOK ON HUMAN R IGHTS, 218 (Vol 19. 1989) [hereinafter Schachter, Lawful Use of Force].

12



potential attack and the general international inability to address the current

challenges of transnational terrorist networks.47 Both of these realities, in

conjunction with the opinio juris above suggest that “harboring” non-state actors

that are regarded as “terrorist organizations” can result in the attribution of their

attacks to the host.

On the other hand, the ability for defensive measures in response to an

“armed attack” to legally affect those other than just the”attacker” is a disputed

point.48 This is based on the theoretical distinction made between “complicity,” in

which one actor can be held responsible for aiding and abetting in the others’ illegal

act, with knowledge of another’s actions, and “imputation of direct responsibility.”49

Applied to the issue at hand, this approach implies that use of force would not be

justified against a host state absent proof of something more culpable than

harboring.50 This standard would then certainly exclude the second level of the

“unwilling and unable” framework from being included under legal attribution.51 This

need to distinguish the level of culpability for the “harboring” state from that of the

actual aggressor within its land has support in authoritative pronouncements,52 and

from commentators that distinguish the two factors.53

Further clarity of the acceptance of “harboring” as a legal pre-requisite to

attribution can be found in a brief analysis of the American response to 9/11 against

47 See id. (explaining that the “scale and effects” of the attack can make state attribution more likely); see also

Ratner, supra note 18, at 920 (explaining that as a result of these factors, “orthodox view of state responsibility haseffectively vanished”).48 Simma, COMMENTARY O N UNC, supra note 17, at 799, para. 28 n. 109.49 See Ratner, supra note 18, at 908.50 Id. at 908-909.51 See supra text accompanying note 16 for a discussion of the three levels within the “unwilling and unable to

control” relationship between host and non-state actor.52 See Ratner, supra note 18, at 909 n. 29 (specifically highlighting the use of the terminology “complicit in” asopposed to “responsible for” in Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate

Terrorism, pmbl., para. 3, OAS Res. RC.23/RES.1/01 (Sept. 21, 2001), reprinted in 40 I.L.M. 1270 (2001) (where

the Organization of American States adopted a resolution “recognizing the inherent right of individual and collective

self-defense in accordance with the [OAS and UN] Charters,” and stating that “those responsible for aiding,

supporting, or harboring the perpetrators … of [the September 11 attacks] are equally complicit in these acts.”

(emphasis added))).53 See DINSTEIN, supra note 17, at 215 (“In such a case the host state is in breach of its international obligation, but

not guilty of an attributed armed attack.”); see also Weiner, supra note 4, at 434 nn. 65-66 (“When states violate thisrule against harboring terrorists, they violate international customary law. Yet, that is distinct from the violent acts

carried out by the terrorists themselves, which may give rise to permissible self defense for the attacked state.”); see

also id. n. 67 (quoting Letter from U.S. Secretary of State to Professor Eugene Rostow (May 29, 1974), reprinted in

Arthur W. Rovine, Contemporary Practice of the United States Relating to International Law, 68 AM. J. I NT’L L.

720, 736 (1974) (where the U.S expressed the position of that the breach by the harboring state was only of an

obligation to prevent the presence of the terrorists on its territory, not the Article 2(4) violation by the terrorist

organization)).

13



the Taliban regime. There is consensus that the decision to specifically attack the

Taliban, separate from Al-Qaeda, was unlawful under the accepted attribution

standards at the time.54 Even though Al Qaeda was not dependent on the Taliban

for financing or supplies, the Taliban was still severely punished for its ideological

kinship with Al Qaeda, and for allowing it to use Afghan territory.55 The position of

the United States was that this relationship was enough to attribute the 9/11

attacks to the Taliban and sufficient use force reason under Article 51 against it.

Even if the U.S. and NATO decision to attribute the acts to the Taliban can be

deemed exceptionary, and not indicative of an adjustment to the attribution

doctrine, the Necessity Doctrine would legitimately support attacking the Taliban in

this case. It is undisputed that Al Qaeda is a lethal terrorist organization with a well-

known disposition of war toward the United States. Further, given this reality, it then

becomes critical and necessary to prevent it from having any safe base of

operations. Since the Taliban regime made it clear that it would vigorously oppose

any foreign forces entering its territory to root out Al Qaida bases, it is difficult to

see how there was an alternative to the overthrow of the Taliban regime in order to

succeed in its aims of removing Al Qaida from Afghanistan.56

In sum, the United States’ decision to attack the Taliban and remove it from

power was accepted as legitimate under the circumstances. From a legal

standpoint, it may have either confirmed the expansion of the attribution doctrine

to include “harboring” states that host terrorist organizations, or was an exceptional

situation that did not affect the rule. Either way, the legitimacy of the US actions is

not disputed, and that is evidence of the potential creation of customary

international law as an expansion of the attribution doctrine. Alternatively, if the law

it interpreted did not expand the attribution threshold, then these facts support

allowing some type of force when there is partial attribution.

(3.) Partial Attribution for “Harboring” State

54 See Glennon, Fog of War, supra note 20, at 544 (stating that use of force against the Taliban government after

9/11 under the definition of armed attack was unlawful because it did not meet the requirements of attribution as

articulated in the Nicaragua case); see also Weiner, supra note 4, at 432-33 (stating that it is difficult to attribute to

Afghanistan the acts of Al Qaeda on 9/11 under even the most lenient theory of attribution).55 See id.at nn. 61, 62.56 See Christopher Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan, Al-Queda, and

Iraq, 4 SAN DIEGO I NT’L L.J. 7, 25 (2003).

14



If the status of the law of attribution does not include states that “harbor” terrorists,

then that causes an emergence of a “partial-attribution” doctrine, which dictates

the extent to which states violating their international responsibilities can be held

accountable for actions of non-state actors inside their lands. There have appeared

two separate possible modifications to the use of force laws, besides the expansion

of the attribution standard above, 57 that reflect the need to influence states to

prevent terrorist-related activities on their shores.58 The first is to expand the

concept of vicarious liability independent of traditional attribution doctrines to hold

host states responsible.59 The second is to accept forcible reprisals as lawful in

cases where the host state breaches its obligation not to acquiesce to terrorist

activities.60 These concepts all reflect the need to clarify the scope of the “Partial

Attribution Doctrine,” and their emergence in academic writing supports the need to

do so.

The need to articulate a functional legal framework that punishes states for

internationally illegal behavior in their relationship with terrorist organizations can

be fulfilled by the partial attribution doctrine. It is based on the premise that even if

the strict attribution standards are not met, states can still be held responsible for

neglecting their international legal responsibilities. A state has a “specific duty not

to tolerate the preparation in its territory of actions which are directed against a

foreign Government or which might endanger the latter’s security,” which, if not

met, assigns responsibility to the state for the wrongful omission.61 All the

requirements, as articulated listed in UN Res. 1373 and other opinio juris, for a state

not to “harbor” terrorist organization, are an extension of its obligation to preserve

57 Weiner, supra note 4, at 445 n. 113 (citing, e.g., Davis Brown, Use of Force Against Terrorism After September

11th: State Responsibility, Self-Defense and Other Responses, 11 CARDOZO J. I NT’L & COMP. L. 1, 13-17 (2003);

Joshua E. Kastenberg, The Use of Conventional International Law in Combating Terrorism: A Maginot Line for

Modern Civilization Employing the Principles of Anticipatory Self-Defense & Preemption, 55 A.F. L. R EV. 87, 124

(2004) (arguing that states guilty of “aiding and abetting” terrorist organizations forfeit their international law

protection against the use of force)).58 Weiner, supra note 4, at 445.59 Id. at n. 114 (citing, e.g., Jack M. Beard, America’s New War on Terror: The Case for Self-Defense Under

International Law, 25 HARV. J. L. & PUB POL’Y 559, 581-82 (2001) (“While a state may have once argued that the

actions of terrorist organizations did not impose responsibility on the state under Article 2(4) of the U.N. Charter

and did not subject them to forcible measures in response under Article 51, those conditions no longer appear to

pertain)).60 Id. at n. 115 (citing, e.g., Kastenberg, supra note 57, at 125 (arguing that a state that grants terrorist groups safe

haven or offers other support “may be subject to military attack”)).61 Ago, R., Fourth Report on State Responsibility, [1972] II I NT’L L. COMM’ N, YBK . 71, 120.

15





the obligation of States to prevent activities of non-state actors on their territory

when the groups are international terrorist organizations.

Given the greater expectation of States when the groups in their territories are

considered internationally illegal, assigning culpability to the States still requires

some type of relationship between the State and group. The applicable standard is

two-faceted where, first, a State must not “knowingly [allow] its territory to be used

for acts contrary to the rights of other states,” 67 and second, it should have “means

at its disposal” to protect the interests of the other state.68 This means that a State

must have knowledge of the activities that it is obligated to prevent, since it is

possible that it may be unaware of what is happening inside its borders, especially

when the non-state actor operates in remote and densely populated areas.69 Also,

where the host state does not condone, but is too weak – militarily, politically, or

otherwise – to prevent these operations, its responsibility is nominal.70

Essentially, the extent to which a host state is attributed to the acts of a non-state

actor in its territory depends on the overall illegality of the behavior of the state

“harboring” the group. The illegality is increased when the group is a terrorist

organization, and even further increased if the group has already engaged in

attacks. Also, the illegality is augmented by the increase in potential damage that

an attack stemming from this non-state actor can cause to another country.

Moreover, the greater the ability of the state to hinder the activities of the group,the greater the illegality of its omission to do so.71 Yet, if a state is unable to cause a

change in the behavior of the non-state actor, either because it does not know

about the group’s machinations or is incapable of stopping it that decreases the

illegality and makes the state an innocent third party. The critical issue that

emerges is at what point in the “illegality” of the host state it exposes itself to the

use of force from the victim state. The answer depends on the specific facts and

circumstances of each case and how states weigh the factors outlined above.

67 The Corfu ChannelCase (United Kingdom v. Albania), Merits, 1949 I.C.J. R EP. 4, 22 (1949).68 U.S. Consular Staff in Tehran, supra note 65. For example, a relationship where the Government can do very

little to prevent the activities of the NSA is where it is ideologically and politically against the NSA, and the

government’s armed forces are in active armed conflict with the NSA. Weiner, supra note 4, at 434.69 See DINSTEIN, supra note 17, at 215.70 Id.71 See, e.g., Glennon, Fog of War, supra note 20, at 544 (stating that there was not attribution, but the U.S. is

allowed to overthrow them because of their omission to prevent a group like Al Qaida from operating in their lands).

17



In sum, separate from permissible responses directly against assets of the non-state

actors, there exists legal justification for responding directly against the host state.

This can be done under the legal guidelines of full attribution, or under the proposed

partial attribution doctrine. The current debate in international jurisprudence is

focused on whether the attribution laws can be expanded to encompass situations

in whichstates are “harboring” terrorist organizations. If not, then to what extent

can the harboring state be punished if they are partially attributed with armed

attacks, or more pointedly, can the attacked state respond with the use of force?

Conventional wisdom may suggest that if there is full attribution, then armed force

can be used, and if there is only partial attribution then only alternative means are

permitted. Therefore, the standard for attribution would need to reflect all situations

where a state may reasonably be permitted to use force. Since American use of

force against the Taliban was widely perceived as legitimate, that would suggest

the acceptance of “harboring” terrorist organizations as legal attribution.

On the other hand, it may be said that “harboring” remains only enough of a

connection for partial attribution, and the use of force is permitted under certain

facts. This then forces a distinction between the permitted use of force under full

attribution and under partial attribution. To make such a conceptual separation

would require detailed analysis of military tactics, and is more complicated than to

decide the necessary relationship boundaries for full attribution. It would be simplerto conclude that states “harboring” terrorist group can be subject to armed

response in self defense – within boundaries of proportionality and necessity –

thereby more reasonably fitting under a full attribution standard. Therefore, if

American actions against the Taliban and the international response are accepted

as altering the status of the law, “harboring” may be considered to permit the full

attribution to the host.

It is important to stress that this conclusion assumes that the generally accepted

legitimacy of the American actions is enough to label it “legal.” If it does not change

the legality, and the response is perhaps considered as exceptionary under the

necessity doctrine or mitigated because of extraordinary circumstances, then

“harboring” remains outside the scope of legal attribution, and partial attribution

does not permit use of force. This highlights the encompassing role of necessity in

customary international law, and its importance in potentially altering it. It also

18



leads to the next section of the thesis, which underscores the natural legal bearings

of the necessity doctrine as reflective of a greater need to take account of natural

law as a substitute to positivism in the contemporaneous development of the

international legal framework governing the use of force.

• Note on the Unique Nature of the Israel-Hezbollah War.

The recent war between Israel and Hezbollah that occurred in the summer of

2006 was a unique situation that gives insight into how the partial-attribution

doctrine can be applied in practice. Even though Hezbollah cannot be easily

classified as a non-state actor, and does not comfortably fit into the partial

attribution model established above, the facts of this war are still informative in

creating a workable legal model for defending states operating against a host. An

examination of this conflict bridges into a deeper understanding of the issues a

state is faced with when deciding whether to attribute culpability to a host and to

hold it accountable through armed force.

The unique nature of Hezbollah prevents an unambiguous label. First, it is a

fully independent organization with an independent autonomous power structure. It

has an independent militia run by an executive authority that rivals the Lebanese

army, and it has an independent treasury that funds numerous social services.72 All

of this was established with specific ideological goals, and in furtherance of theseaims, Hezbollah also operates as a powerful and influential political party within

Lebanon, with significant popular support and influence on the masses. The

emerging entity is a state-within-a-state that eludes clear legal understanding, and

complicates the definition of what “Lebanon” is.

Parallel to Hezbollah’s reputation and status as an extremely ideological

terrorist organization, it is fully integrated and influential in the political and social

dynamic of Lebanon. It has officials in the legislative and executive branches.

Moreover, it is fully involved in the social and business aspects of the society. Doesthis integration into the Lebanese structure make it de facto Lebanon? Is an Israeli

response against its infrastructure deemed an Israeli attack against Lebanon? It is

72 See LEBANON: The many hands and faces of Hezbollah, U.N. OFFICE FOR THE COORDINATION OF HUMANITARIAN

AFFAIRS (Mar. 3, 2006), available at http://www.irinnews.org/report.aspx?reportid=26242; see also Hezbollah's

secret weapon, CNN.COM (Jul. 25, 2006)

http://www.cnn.com/2006/WORLD/meast/07/24/schuster.hezbollah/index.html.

19



informative to point out that the latest conflict was labeled “Israel-Lebanon II”

rather than “Israel-Hezbollah.” In theory, Lebanon and Hezbollah are two separate

entities: one is an ambitious attempt at a democratic state, and the other is a

terrorist non-state actor. Yet, in practice, the latter is fully integrated into the

former.

Moreover, this analysis is further complicated by the great disunity within

Lebanon, which highlights other aspects in identifying the definition of what

Hezbollah is. Since there are many groups in Lebanon that are just as hostile to

Hezbollah as is Israel, and since these groups consider Hezbollah to be outside the

state, this separates them on a social level from the conception of Lebanon. At the

same time, Hezbollah would not be able to garner the necessary influence in the

country as it has if not for its popular support. In sum, it is not feasible to label

Hezbollah completely as either a non-state actor or a state; rather, it is a unique

combination of both.

Since Hezbollah cannot be clearly defined as a non-state actor, the partial

attribution of its culpability cannot be properly defined. Partial attribution analysis

asks how guilty the host is for acts of the group operating within its land. To what

extent does the disease of culpability infect the host with the responsibility to

prevent? Attribution is the legal method of imposing guilt on a state as a whole for

the acts of groups that are distinct from it. It assumes a clearly defined theoretical

and actual separation between the state and the group. In this case, since

Hezbollah is an entity that is a state-within-a-state, the concept of attribution does

easily apply itself to this situation.

Yet, if we assume otherwise, such a separation between the state and the

group is not required. Consequently, all that would be needed is a group

empowered with accountability for a certain piece of land, and another group

operating inside of it in order to make a partial attribution analysis. The issue that

emerges is what does it take to be “empowered with accountability” under these

circumstances? What internal or external legitimizing event imposes on an entity

the task of making sure the land it has control over should not be the origin of

aggression against its neighbors? The logical answer is that the confirmation of

statehood and the rights and responsibilities that are its offshoots are the “events”

that impose potential liability on the host. Therefore, accountability is tied in with

the sovereign scope of the state, and its operational reach. Thereby, if a state has

20



legal “sovereignty” under international law over a certain geographic area, then it

can be held accountable for aggressive behavior stemming from that piece of land.

This analysis confirms the need for a clear distinction in theory and practice

between the state and the non-state actor in order to apply the partial attribution

doctrine. Critically, this prevents a clear application of partial attribution to these

facts.

Given the above, after an account of both the clear facts in this case and the

expected behavior of the parties involved, it does not make sense to label

Hezbollah a non-state actor. It is conceptually difficult to separate Hezbollah from

Lebanon, because of its integration into their social, economic, and political

structure.73 Moreover, from Israel’s standpoint, its legal posture in justifying the

scope of its resort to force would be more smoothly presented if Israel argues that

Hezbollah is not a non-state actor. Since such a position does have legitimate

arguments supporting its chances of gaining approval in the international

community. In this case, only a portion of the conceptual “state” – Lebanon – is not

aligned with Hezbollah, and the other is Hezbollah itself. Consequently, the situation

is a state charged with the task of preventing activities that a portion of itself is

committing.

Nevertheless, from a theoretical perspective, it would be useful to examine

Israel’s use of force under these facts if Hezbollah is deemed a non-state actor.

From such a conceptual background, a few insights can be gained into what the

theoretical parameters of the partial attribution doctrine should be. In applying the

framework for partial attribution established above, more clarity is found on the

specific issues that need to be considered.

Israel’s resort to force against numerous elements of the Lebanese

infrastructure, and its legitimacy under international legal scrutiny provides some

insight into what type of culpability is required for a host in order to be held

accountable.74 The two elements requiring analysis are: (1) the nature of the non-

state actor, i.e. its illegality and potential to cause harm; and (2) the relationship of

NSA to the host state.75 The first element helps to establish the legal responsibility

of a state to prevent the operations of these groups within its boundaries, while the

73 See generally id.74 See generally S.C. Res. 1701, pmbl., U.N. Doc. S/RES/1701 (August 11, 2006).75 See supra section I(B)(3).

21



second element questions whether the host is able to fulfill, and has been fulfilling,

this responsibility. In this case, the global reach and operational illegality of

Hezbollah is not in dispute.76 This can therefore be said to trigger the highest

possible obligation for the host state to hinder and disrupt the activities of the non-

state actor.

That being established, the next step is to identify the ability of the host to

influence the behavior of the group, taking into account what it will cost the state to

do so. If the state has actual notice of the activities of terrorist organizations on its

soil and has the means to obstruct their activities without significant harm to itself,

then the state’s culpability and exposure to reprisal is clear. However, a very

complicated situation emerges when there are circumstances similar to Lebanon’s,

where the government is fully aware of the activities of the non-state actor but can

only stop it by initiating what would amount to a civil war. In this case, the

application of the partial-attribution doctrine is forced to weigh very acute state

sovereignty issues against an attacked state’s right to self-defense. Is Israel

permitted to attack imbedded aspects of Lebanese infrastructure that are also

utilized by Hezbollah for its hostile activities as a response to an armed attack?

In this war, in furtherance of its self defense, Israel attacked neighborhoods in

Beirut, roads, bridges, and other Lebanese assets that were all logistically important

for Hezbollah.77 Besides having the intended effect on Hezbollah’s operational

capability, these strikes also significantly affected the host state. The question is if

this punishment inflicted on Lebanon is justified under these circumstances.

Moreover, if it is justified, is it because it was an acceptable collateral consequence

of Israel’s defense against Hezbollah, or because it was a permitted version of

partial attribution where the host was being punished for its culpability in the

activities of the non-state actor? This discussion mirrors the hypothetical discussion

in the previous section of the conflict between Britania and Oceana, where the

76 The group is considered a terrorist organization by the United States, Israel, Canada, and the Netherlands. TheUnited Kingdom has placed its military wing on its list of proscribed terrorist organizations, while Australia

considers part of its military structure, the External Security Organization, a terrorist organization. See

Wikipedia.com entry for “Hezbollah”, available at http://en.wikipedia.org/wiki/Hezbollah#cite_ref-CFR_3-1.77 See Israel attacks Beirut Airport Again, I NT’L HERALD TRIB., Jul. 14, 2006, available at

http://www.iht.com/articles/2006/07/14/news/web.0714lebanon.php (retrieved on Nov. 26, 2008) (Israel struck

Beirut airport again on Friday and bombed Lebanese roads, power supplies and communication networks in a

widening campaign after Hezbollah guerrillas seized two Israeli soldiers and killed eight.”).

22



permission to respond in self-defense was concluded to be justified because of the

self-defense of the state, and not to punish the culpable party.78

The fact that the exact nature of Hezbollah cannot be pinpointed makes the

analysis much more complicated. If Hezbollah is considered a quasi-state and a part

of the conceptual “Lebanon,” that pre-empts this analysis completely. From Israel’s

viewpoint, under this theory, it is not required to justify any type of attribution to

Lebanon as a separate entity from Hezbollah, because Hezbollah is de facto

Lebanon. Therefore, this is not a question of the legal limits of attribution, but

rather, a more traditional jus ad bellum analysis of state-versus-state warfare. On

the other hand, if Hezbollah is considered a non-state actor, then any response to

its aggression against Lebanon, its host state, would awaken the conflicting issues

of the host’s sovereignty versus the victim’s self-defense.

If the attacks perpetrated on Lebanon by Israel as a response to the activities

of Hezbollah are accepted as legal or legitimate, assuming the fact that the

Lebanese government is an innocent third party, that suggests that all hosts are fair

game so long as the targets for attack are sufficiently connected to the operations

of the non-state actor. The difficulty arises in determining the legal boundaries of

“sufficiently connected to operations of the non-state actor” when weighed against

the actual collateral damage done to Lebanon. An in-depth analysis of this issue

delves into concepts of necessity and proportionality in jus in bello, which is outside

the scope of this paper.

To conclude, the attempt to clarify the legal lessons learned from the Israel-

Hezbollah war highlights the complexity of the issues we are dealing with. The

attempt to find a place for this conflict within the legal formula only functions on an

abstract level. When these issues arise under the pressure of battle, decisions are

not made with a primary goal of compliance with the international laws. Rather, the

specific facts of each case are weighed both in the long-term and in the short-term

based on the ethical and political inclinations of the decision maker. Then, only after

the fact, do the legal advisors attempt to fit the decisions made into a package that

is suitable for the international stage. Any realistic goal for the laws to influence

state behavior should allow for the inclusion of considerations that touch upon these

ethical and political factors.

78 See supra section I(A).

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Alexander Levkovich Military Reponse Againt Non State Actors and Their Hosts