On September 6, Israeli aircraft temporarily violated
Syrian sovereignty and bombed what appeared to be a
partially built nuclear reactor. David Sanger of the
New York Times called the strike "an act of war" on
Face the Nation. Can Syria retaliate, claiming
self-defense under international law?
Nations can only attack another state under two
preconditions under international law: In self-defense
or if a UN Security Council resolution is passed
authorizing war. Syria could claim that the strikes
amounted to an armed attack against a Syrian military
installment and retaliate in self-defense.
Of course, Syria would be crazy to retaliate. Not just
because its army is no match for Israel's but because
it has no support in the region. Curiously no Arab
state condemned the strike, probably because no one in
the region wants to see Syria join the nuclear club
anymore than Israel.
But set aside geopolitics, was Israel's strike an act
of war? I would argue not. First, Israel could
probably make the case it was acting in anticipatory
self-defense under the logic that Syria was preparing
what appeared to be a nuclear program, however distant
in the future. Even Syria's president admitted the
target was a "military building" (albeit unused, he
claimed). Unlike Israel's similar strike against an
Iraqi nuclear reactor at Osirak in 1981, which the
world, including the United States, condemned as a
violation of international law, there has been little
condemnation from abroad and silence from the Arab
world.
Anticipatory self-defense is a fuzzy principle but
some legal experts say it is enshrined under Article
51 of the UN Charter. They often point to the 1837
Caroline case, in which British and Canadian rebels
crossed into U.S. territory and set the steamer
Caroline ablaze, killing two Americans in the process.
The Americans argued that the British claim of
self-defense--the ship was suspected of ferrying arms
to anti-British rebels--failed to "show a necessity of
self-defense [that was] instant, overwhelming, leaving
no choice of means, and no moment for deliberation," a
line of argument often cited by legal authorities to
justify anticipatory self-defense. Plus, although it
really is not in grave danger anytime soon of waking
up to a mushroom cloud along its Syrian border, Israel
thinks in different timelines from most countries, as
Michael Green of Georgetown University tells the New
York Times, not to mention the bombing was probably
aimed more at Iran's nuclear ambitions than Syria's.
To be sure, not every violation of sovereignty should
be regarded as an act of war. Otherwise, that means
Turkey, which has launched a number of limited
cross-border incursions into northern Iraq in "hot
pursuit" of Kurdish rebels over the past few decades,
has declared war on Iraq dozens of times. That further
implies that the state offended reserves the right to
act in self-defense. Under this logic, there should be
multiple wars raging in the Middle East right now. By
the same token, that is not to dismiss or greenlight
the random bombing of buildings in neighboring states.
But under certain circumstances the temporary
violation of a state's territorial sovereignty can and
should be justified under international law, provided
it is limited in scope and proportional to the threat
posed. Israel cannot bomb Damascus. But a potential
future bomb-making factory is fair game.