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The Use of Force in International Law - A Case-Based Approach edited by Ruys, Tom; Corten, Olivier; Hofer, Alexandra (17th May 2018)

Part 1 The Cold War Era (1945–89), 23 Operation Litani—1978

Myra Williamson

From: The Use of Force in International Law: A Case-Based Approach

Edited By: Tom Ruys, Olivier Corten, Alexandra Hofer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 November 2019

Subject(s):
Self-defence — Precedent — Armed attack

(p. 269) 23  Operation Litani—1978

I.  Facts and Context

The use of force by Israel against Lebanon, which began on 14 March 1978 and lasted for six/seven days, is usually referred to as ‘Operation Litani’, which was the code name assigned to it by the Israeli Defence Force (IDF). It is also sometimes called the 1978 South Lebanon conflict and the Litani Operation. In this case, IDF forces invaded and occupied Lebanon up to the point of the Litani River. This use of force should be understood in the context of both its immediate and long-term causes, which are discussed in turn below. The immediate cause of the Israeli use of force was a terrorist operation carried out on 11 March 1978 by the Palestine Liberation Organization (PLO). The terrorist attack of 11 March 1978 is commonly referred to in Israeli literature as the ‘Coastal Road Massacre’.1 On that day, eleven Palestinian members of ‘Fatah’, led by Dalal Mughrabi, came ashore in two boats on the coast of Israel having left their base in Lebanon on 9 March 1978.2 They arrived at Caesarea where they encountered an American tourist (Gail Rubin) who was briefly questioned and then killed.3 They proceeded to the main Haifa–Tel Aviv road where they subsequently hijacked a taxi and killed its passengers. They then hijacked a bus and ordered the bus driver to proceed in the direction of Tel Aviv. Whilst en route to Tel Aviv, they hijacked a second bus and made the passengers of the first bus board the second one.4 Israeli security forces stopped the bus at a roadblock set up near Herzilya and a gunfight ensued. Eventually, all eleven members of Fatah were killed by the Israeli security forces. In this incident, thirty-seven Israelis were reportedly killed and seventy-six wounded, according to Israel’s Ministry of Foreign Affairs.5 Three days later, on 14 March 1978, Operation Litani commenced. It was a seven-day offensive involving 20,000 to 25,000 Israeli troops, which occupied Southern Lebanon up to the point where the Litani River crosses Lebanon. Although the immediate trigger for the Israeli use of force was the coastal road terrorist attack of 11 March 1978, there were also several other long-term causes. Both the 11 March terrorist attack and the 14 March Israeli response to it should be considered within a wider context, which is as follows.

(p. 270) The origins of the 1978 use of force can be traced back to the pre-independence period when Israel’s territorial designs on Southern Lebanon were openly expressed. Even before the establishment of the State of Israel, early Zionists lobbied for the inclusion of Southern Lebanon up to the Litani River within the borders of the Palestinian mandate.6 Zionists referred to the Litani River as the ‘natural and historic border’ between Lebanon and Israel and at the 1919 Paris Peace Conference the Zionist delegates urged the Maronite Patriarch of Lebanon to proclaim a Maronite ‘homeland’ in Mount Lebanon—instead of acquiescing in the French proposal of a mandate over Greater Lebanon.7 In addition, Israel’s water shortage has often been discussed as a practical and existential reason for Israel’s long-term interest in Southern Lebanon in general, and the Litani River in particular.8 In the end, the French authorities did not give in to the British and Zionist requests and inducements: the Litani River was included within Lebanon’s borders but there was a lingering feeling (in Lebanon at least) that Israel still had designs on the Litani River.9

The events of 1978 cannot be divorced from the wider Palestinian issue. After the creation of Israel and in the decades leading up to the events of 11 March 1978, Lebanon had become home to a large number of displaced Palestinian refugees; south Lebanon in particular had become a stronghold of the PLO. In November 1969, an agreement between Yasser Arafat, the PLO leader, and Lebanese Army Chief of Staff Emile al-Bustani was signed (‘the Agreement’), which afforded official Lebanese recognition to the ‘Palestinian revolution’.10 The Cairo Agreement was an effort to regulate the relationship between the PLO and the Lebanese Government; it gave Palestinian officials permission to conduct the ‘armed struggle’ from Lebanese soil as long as it did not undermine ‘Lebanese sovereignty and welfare’.11 It is logically necessary to consider why Palestinians were in Lebanon in the first place because, as noted by Chomsky, ‘they did not move there because they liked the scenery’.12 Thus, the main long-term cause of the Litani Operation was arguably the creation of the State of Israel and the 1948 War that displaced Palestinians.13 It is beyond the scope of this work to review the establishment of Israel and the refugee crisis that it created, yet there is a chain of causation between the events of 1948—the displacement of Palestinian refugees, the creation of the PLO, the continued denial of Palestinian rights, and the terrorist attack of 11 March 1978—which in turn triggered the Litani Operation. (p. 271) Since 1948, a large Palestinian population of refugees and their descendants had been residents in Lebanon. Palestinian political and paramilitary activity had been evident there since the 1960s but this increased markedly after 1970, especially when the Fatah leadership arrived in Beirut accompanied by approximately 3,000 Palestinian fighters.14 In September 1970, the PLO leadership was ejected from Jordan after a defeat at the hands of King Hussein and henceforth it established itself in Southern Lebanon.15 Palestinians in Lebanon were actively trying to achieve their political goals of returning to Palestine and establishing their own state, whilst Israel was equally intent on securing its northern border and protecting its settlements in northern Israel from cross-border attacks. The Lebanese state’s weakness and Beirut’s inability to control its borders combined with the ‘eruption’ of Palestinian nationalism was a thorn in Israel’s side.16 By the time of the 11 March 1978 incident on the coastal road, Lebanon had been implicated in supporting the Palestinians’ terrorist attacks on Israel and the Israeli–Lebanese border was a source of constant concern. The Government of Lebanon had lost control over Southern Lebanon.17

An important incident in the lead-up to the Litani Operation was the December 1968 Israeli air force attack on Beirut International Airport, codenamed ‘Operation Gift’, which resulted in the destruction of more than a dozen airplanes on the ground.18 Israel justified this as a response to earlier terrorist attacks on Israeli planes including the 22 June 1968 hijacking of an El Al plane that departed Israel en route to Rome, and the 26 November 1968 attack on an El Al plane at Athens airport in which one Israeli citizen was killed. The People’s Front for the Liberation of Palestine (PFLP), which was based in Beirut at that time, claimed responsibility for the latter attack: two of its members had travelled from Beirut to Athens to carry it out. Israel alleged that Lebanon had permitted terrorist organizations to operate from its territory—a claim that was roundly rejected in the United Nations Security Council (UNSC).19

There were also regular exchanges of fire between the PLO based in Southern Lebanon and the IDF prior to 11 March 1978. In the mid-1970s there was an escalating border war that had displaced around 150,000 Lebanese Muslims from Southern Lebanon.20 On 9 November 1977, Israel heavily shelled the Lebanese town of Nabatiya using Israeli batteries on both sides of the border.21 This allegedly unprovoked attack resulted in the deaths of seventy people22 or more than 100, depending on the source.23

The situation within Lebanon and between Israel and Lebanon was certainly complex and a source of continuing concern for Israel, which did not want to see Syrian forces in Southern Lebanon, nor did it want the PLO to continue operating from there. Israel decided that its interests would best be served by giving military support to Lebanese (p. 272) Christian villages near its northern border, and by 1977, to lend its support to Major Sa’ad Haddad’s militia.24 This was part of what was known as the ‘Good Fence’. Israel’s objectives in supporting the Maronite Christians in general, and Haddad’s militia in particular, were to simultaneously prevent Syria from gaining influence in Southern Lebanon, limit the PLO’s activities there and secure its border without having to physically occupy Southern Lebanon. This was the policy of the Rabin government,25 however, things began to change with the 1977 rise to power of Menachem Begin and the Likud bloc.26 Furthermore, in the summer of 1977, Israel became concerned at the rapid increase in PLO forces in the south. It needed a solution, but it opposed the idea of Lebanese army units being sent there as that would mean the end of the ‘Good Fence’ (and the Lebanese army was also thought by Israel to be under the control of its enemy, the Syrian army) and it would end Israel’s relationship with Haddad’s militia. Israeli politicians possibly felt they had no choice: to counter the growing PLO presence they had to increase the military support for Haddad.27 Alternatively, there was most likely a high-level decision taken by the newly elected Begin government that led to a strategic change in Israeli policy, favouring ‘a new offensive posture in regard to southern Lebanon’.28 Whatever the case, and perhaps both explanations are correct, aiding the Christian militias seemed the most effective way in the short-term of limiting the activities of the PLO in Southern Lebanon. Israel thus built an elaborate defence system along the Lebanese border, supported three enclaves of Haddad’s militias, and repeatedly struck Palestinian targets.29

In September 1977, tensions in Southern Lebanon escalated. Israel provided military support to Haddad’s offensive against the town of Khiam and Israel occupied positions on the Lebanese side of its border. In response to Israel’s incursion, the PLO began rocket attacks on Israel—the Israeli towns of Safed and Kiryat Shemona were hit.30 Israel then intensified its attacks in an attempt to drive the Palestinians from their bases. By September 1977, Israel seemed to have changed its strategy: to protect northern Israel, it had hitherto adopted the approach of supporting Lebanese Christian militias, however, a more direct approach involving independent Israeli military activity in Southern Lebanon swung into favour.31 A serious confrontation between Israel and the PLO was brewing in late 1977 as the Palestinians increased their presence in Southern Lebanon and also moved in heavy weapons, to increase the pressure on the Christians. Israel extended artillery support to the Christians but avoided intervening with ground units.32 Palestinian organizations deployed units to the Beaufort Crusader Castle, which enjoyed a position of dominance over (p. 273) the Christian villages. As noted by Evron, ‘the pressure on Israel to relieve the Christians increased and some kind of military operation seemed to be on the cards’.33

Amidst this tension, the Fatah attack of 11 March 1978 occurred; three days later, at 23:15 GMT on 14 March, Israel launched the Litani Operation. Approximately 20,000 to 25,000 ground troops, backed by tanks, artillery, fighter planes, and gunboats were involved in the operation. The first stage was codenamed ‘Even Hachochma’ (The Wisdom Stone) and was completed by 15 March. Opposition was very limited since most of the Palestinian guerrillas had already left their positions in anticipation of an Israeli attack; only about a fifth of the estimated 5,000 Palestinian guerrillas operating in Southern Lebanon were present when the attacks ensued and many of those remaining fled in the face of Israel’s superior power. The civilian population also fled and an estimated 200,000 people left the area.34 The invasion consisted of land, air, and naval attacks on targets in Southern Lebanon including Tyre, although Tyre was not occupied. The initial plan was to seize a series of dominant positions in south Lebanon and relieve the pressure on the Christian militias. However, this developed into a wider ranging plan, which was to link the various dominant positions into a coherent 10 km-wide strip along the entire length of the Israeli–Lebanese border.35 Although Israel concentrated on the area up to the Litani River, several air attacks were also launched on positions north of the river.36 Operation Litani officially ended on 21 March 1978 when Israel declared a unilateral ceasefire. The UN peacekeeping force—United Nations Interim Force in Lebanon (UNIFIL)—arrived in the area on 23 March 1978 although the Christian and PLO forces did not accept UNIFIL’s mandate. Nevertheless, the peacekeepers’ mission began and their mandate was thereafter renewed every six months.37

II.  The Positions of the Main Protagonists and the Reaction of Third States and International Organizations

1.  Israel

Prime Minister Begin made a statement on 15 March 1978 wherein he asserted that, ‘[t]he terrorists came from Lebanon’.38 This was vigorously disputed by the Lebanese Government in its letter to the Security Council of 15 March 1978.39 The Israeli Knesset passed a short resolution stating, inter alia, that ‘terrorist organizations and their emissaries must be (p. 274) struck at to exterminate them’.40 Military and political consultations took place from 11 to 14 March when the decision was taken to invade Lebanon. The objective was apparently to attack Southern Lebanon to cause as many casualties as possible to PLO units, to destroy infrastructure, and establish control over important dominating positions within a 10 km strip from the international border.41 However, ‘there was some confusion … as to the political and strategic rationale and objectives of the planned operation’.42 The main motivation was to ‘punish Palestinian organizations’.43 Defence Minister Ezer Weizman told a press conference on 15 March 1978 that Israel had taken military action against Lebanon to ‘clear this infested area [Southern Lebanon] once and for all’.44

By letter dated 17 March 1978, Israel requested the Security Council to convene a meeting to consider the ‘continuous acts of terror and violence against Israeli citizens, together with the frequent shelling, sabotage incursions, bombing and murder being perpetrated from Lebanese territory against Israel, its people and property, in flagrant violation of international law and the Charter of the United Nations’.45 Israel’s letter did not mention Article 51 of the UN Charter, nor did it include the phrase ‘self-defence’. This letter was submitted the same day as Lebanon’s request for an urgent Security Council meeting to consider a response to Israel’s aggression. It was a response to Lebanon’s letter of 15 March46 denying any responsibility for the 11 March terrorist attack and it was also a tacit attempt to justify Israel’s use of force on 14 March as being a valid response to a series of attacks emanating from Lebanese territory.

On 17 March 1978, Ambassador Herzog stated in his speech to the Security Council that the Government of Israel was faced with ‘the inherent duty of every Government to exercise its right of self-defence in the protection of the inviolability of its territory and its people’.47 Ambassador Herzog made the case for anticipatory self-defence as follows:48

In light of this situation [the lack of Lebanese control over Southern Lebanon], in light of the unmistakable increase in PLO presence and weaponry in the area … in light of the PLO’s declared intention to repeat atrocities like the one carried out in Israel last Saturday, the Government of Israel was compelled to act. The Government of Israel was left with no alternative. It acted in accordance with its legitimate national right of self-defence, that inherent right to defend its territory and population and to ensure that no more barbaric attacks will be launched against it in the future.

Herzog did not mention Article 51 of the UN Charter, nor did he use the phrase ‘armed attack’ in his address (except when quoting supposed support from international law scholars DW Bowett and JES Fawcett for the Israeli position), but there is no doubt Herzog was asserting Israel’s inherent right to use force in self-defence to prevent future attacks. The claim from Israel that it had ‘no alternative’ could be seen as a nod to the Caroline formula, pursuant to which the requirements of immediacy and necessity require that there must be no moment for deliberation, no choice of means, and so forth.

(p. 275) Ambassador Herzog, in his statement to the UNSC, said that Israel’s objective in Lebanon ‘was not revenge or retaliation … Moreover the aim was not, and is not, to seize territory … The aim was, and is, to clear out the PLO, once and for all, from the territory bordering Israel’.49 Israel claimed that its actions in Southern Lebanon ‘must be seen as part of the war against international terror’.50 Israel also sharply criticized the Security Council for its failure to condemn the PLO and its alleged lack of response to international terrorism. In terms of a legal basis, Israel said that it was ‘compelled to act, in accordance with its legitimate national right of self defence the inherent right to defend its territory and its population, and to ensure that no more barbaric attacks will be launched against it in the future’.51 It may be observed that this was not a tightly reasoned argument on the grounds of self-defence, rather it was a casual and somewhat vague assertion of Israel’s inherent right to self-defence, and there was no reference to Article 51 of the UN Charter.

With regard to the termination of Operation Litani, Israel notified the UN that its troops had withdrawn from Lebanon as of 13 June 1978 and that it had handed over authority to UNIFIL.52 However, a full and final withdrawal of Israeli troops from Lebanon was not achieved until 2000.

2.  Lebanon

Lebanon was quite used to Israeli incursions. According to records kept by the Lebanese army until it withdrew from Southern Lebanon, there were one or two Israeli violations of Lebanese territory every day between 1968 and 1974.53 That increased to seven border violations per day in the two years before the civil war.54 In the first eight months of 1975, there were 1,101 violations of airspace and 215 violations of territorial waters as well as artillery shelling, machine-gun fire, and air and naval raids. This all amounted to an average of seventeen violations of Lebanese territory per day.55 Despite this level of interference, there were political elements within the Lebanese Christian community which had been directly encouraging Israel to intervene in Lebanon for some time: members of the Christian Phalange and Chamoun militias had been secretly meeting with Mossad agents for several years, trying to secure Israel’s support for their cause. When Israel invaded Lebanon in 1978, it was not a drastic enough action in the minds of some Lebanese leaders. For instance, Bashir Gemayel was not so concerned with Southern Lebanon as he was with overcoming the Syrian and PLO influence in the rest of Lebanon. He had been meeting with Mossad agents since the mid-1970s seeking to obtain their direct support and impress on them that only the Christians could be relied upon as friends and allies in Lebanon. Gemayel and others had also been trying for several years to provoke Israel into intervening, according to reports, but until 1978 the Israeli stance had been to help the Christians by arming them.56

(p. 276) Having said that, the use of force by Israel that began on the night of 14/15 March 1978 was quite different because of its massive scale.57 Officially, the Lebanese Government completely opposed the Israeli aggression. Lebanon complained to the Security Council on 15 March 1978 saying that it ‘vehemently deplores this aggression and protests strongly against it’ as well as describing the Israeli actions as a ‘naked aggression against Lebanese territory’.58 Lebanon called for Israeli’s immediate withdrawal, which did not occur. On 17 March 1978, Lebanon sent a letter to the Security Council seeking an urgent meeting.59 The United States (whose position is examined below) took the initiative, and proposed a draft resolution, which eventually was adopted unanimously as UNSC Resolution 425.

3.  The Palestine Liberation Organization (PLO)

The PLO’s Permanent Representative to the United Nations was permitted to participate in the Security Council meeting on 17 March despite the objections of the US representative.60 The PLO called on the Council to take adequate measures ‘to ensure the immediate cessation of the Israeli aggression and to put an end to the bloodshed’.61 The PLO’s representative also spoke of Israel’s historical designs on Southern Lebanon and the history of Palestinians in Lebanon.62

4.  Jordan

Jordan voiced it opposition to Israel’s use of force when it called for the immediate cessation of the armed aggression by Israeli troops by land, sea, and air.63 Jordan’s representative, who was granted permission to participate in the debate even though Jordan was not a member of the Council at that time, condemned the ‘massive Israeli armed aggression against the territorial integrity and independence of a contiguous sovereign independent State’. Jordan used strong language to condemn Israel, claiming that Israel’s ‘barbaric forces have massively invaded Lebanon and continue until this moment to revel in a bloodbath’.64

5.  United States

The United States indicated its concern that the Litani Operation might inflict heavy civilian casualties and that it may disrupt the peace process between Egypt and Israel, which had only begun a few months earlier.65 Through diplomatic channels, Israel notified the United States of the operation and stated that it only intended to reach a solution on the (p. 277) Palestinian presence in Southern Lebanon—it did not intend to occupy Lebanon.66 Israeli decision-makers felt that the United States was prepared to acquiesce to the operation but the United States was concerned about Israel’s intentions and it was not sure what kind of ‘solution’ Israel had in mind for Southern Lebanon.67 Israel did not coordinate its activities with the United States. On the day of Israel’s invasion, the United States indicated that it could foresee only one solution—the instigation of a UN force.68 The United States clearly indicated its opposition to Israel’s use of force by drafting UNSC Resolution 425, calling on Israel to immediately withdraw and for the creation of a UN peacekeeping force.

6.  Syria

The Israeli–Syrian deterrent relationship dictated that Syria would be permitted to operate in Lebanon so long as it did not stray south of the Litani River. Israel took into account Syria’s likely reaction to its 1978 invasion but decided that Syria probably would not intervene in Southern Lebanon. Israel’s assumption was correct: on 18 March 1978 President Assad made a statement saying that ‘Syria would not be dragged into a risky position’.69 There was a tacit understanding between Israel and Syria that Syria would not protest against an Israeli incursion if it was limited to Southern Lebanon and this stance was further supported by Syria’s total lack of intervention during the first phase of Operation Litani.70 Legally and publicly, Syria opposed the Israeli use of force and called it a ‘premeditated Israeli aggression’. Syria also pointed out that the incident that Israel used to justify this use of force (the attack of 11 March 1978) ‘did not emanate from territory that Israel is attacking’.71 Syria rejected Israel’s claims that it needed to take this action to protect itself, stating that ‘no pretext can justify aggression against and occupation of the territory of others’.72 It called for the ‘immediate and total withdrawal of Israeli forces from Lebanese territory.’73

7.  Libya

Libya clearly condemned Israel’s use of force, referring to it as ‘flagrant aggression which threatens the peace and security of the area and the whole world’.74 It also asserted that Israel was using the events of 11 March as ‘an excuse to continue that policy of genocide and expansionism’.75 Libya claimed that Israel’s ‘preparations were already under way in Israel well before 11 March’.

8.  Egypt

Israel was conscious of how Egypt would react to the invasion and as such Israel sent a message to Egypt at the start of the operation that stated: ‘Our forces began a limited operation along the Lebanese border in order to remove the terrorist bases from the area. (p. 278) I hope that this limited action will not disrupt the talks between our two states.’76 Israel kept Egypt informed about the campaign, ‘sending messages concerning the development of the operations’, even though Israel was surprised that Egypt was willing to accept these messages.77 Egypt did not take any legal or military action against Israel and the Israeli invasion did not disrupt the peace talks between Israel and Egypt that were being fostered by the Carter Administration. Egypt was not a member of the Security Council in 1978, however, it was granted permission by the President of the Security Council to participate in the debate that preceded the adoption of UNSC Resolution 425. In the meeting held on 18 March, Egypt made its legal position very clear by criticizing the ‘naked Israeli invasion of Lebanon’ and by agreeing with the Secretary-General’s characterization that this was a ‘violation of the boundaries of a sovereign state’.78

9.  Kuwait

Kuwait asserted that Israel’s actions were not legitimate because the Israeli invasion was pre-meditated.79 In the Security Council debate, Kuwait agreed with the statement made by the representative of Lebanon and Kuwait voted in favour of UNSC Resolution 425. Kuwait’s official view was that the Security Council resolution was not strong enough in its condemnation of Israel. The Kuwaiti representative noted that he would have preferred ‘the inclusion of a paragraph in the resolution strongly condemning Israel for its heinous crimes and blatant aggression’.80

10.  The United Nations

The international reaction to Israel’s use of force was overwhelmingly negative. The Security Council circulated a letter on 16 March 1978 from the UN Secretary-General with statements of condemnation from Libya, Syria, the Permanent Observer of the PLO to the UN, the Permanent Observer of the League of Arab States to the UN, and Algeria.81 The Non-Aligned Movement also issued a statement unanimously condemning the ‘blatant aggression of Israel’.82 The United States drafted a resolution to obtain the immediate withdrawal of Israeli forces from Lebanon. The UNSC unanimously passed Resolution 425 on 19 March 197883 and on the same day also adopted Resolution 426 to implement the peacekeeping force.84 Resolution 425 consists of four operative paragraphs in addition to the preamble. Paragraph one called for the ‘strict respect for the territorial integrity, sovereignty and political independence of Lebanon’. Paragraph two called upon Israel to ‘immediately cease its military action against Lebanese territorial integrity and withdraw its forces from Lebanese territory’. Paragraph three set out the decision to establish, at the request of Lebanon, an interim force in Southern Lebanon which came to be known as UNIFIL, which would oversee the Israeli withdrawal and help restore international peace and security. Paragraph four requested the Secretary-General to report within (p. 279) twenty-four hours on the implementation of the resolution. Although the resolution called for Israel’s immediate withdrawal, it did not go far enough according to the USSR, Czechoslovakia, and China. The USSR and Czechoslovakia abstained because the resolution was not strong enough in its criticism of Israel and because it did not specify that the costs of the UN force should be paid for by the aggressor. China did not participate in the voting because it said that the resolution ‘failed to condemn Israeli aggression against Lebanon’ and it also failed to support the legitimate struggle of the Arab and Palestinian people.85 On balance, it is observed that the Security Council members roundly rejected the claim that Israel was entitled to act in self-defence to prevent future Palestinian attacks from being launched from Lebanon.

III.  Questions of Legality

Both customary international law and the UN Charter prohibit states from unilaterally resorting to force to solve their disputes. By virtue of Article 2(4) of the Charter, Israel was prima facie in breach of international law since it violated the territorial integrity of Lebanon on 14 March 1978. The only way in which states can justify the unilateral resort to force is under Article 51 of the UN Charter, which allows states to employ force in individual or collective self-defence. However, Article 51 can only be utilized if there is an antecedent ‘armed attack’. When addressing the Security Council, Israel did not claim that it had suffered an ‘armed attack’ per se, thereby triggering its right to use force under Article 51, but it did assert the right to use force in self-defence.86 Perhaps the reason why Israel did not specifically claim that it had been subjected to an ‘armed attack’ is that traditionally—and almost certainly at the time of the 1978 events—it was accepted that an ‘armed attack’ must originate from another state.87 Although an ‘armed attack’ could potentially be carried out by non-state actors, if sent by or on behalf of a state,88 Israel probably accepted it could not satisfy that threshold since there was no suggestion that the Palestinians who carried out the attack did so at the behest of the State of Lebanon. On the contrary, Lebanon had virtually (or actually) lost control over Southern Lebanon, so references to having suffered an ‘armed attack’ are not found in the official justifications put forward to the Security Council. In addition to the difficulty of attributing an ‘armed attack’ to Lebanon, it is well accepted that revenge and retaliation are not accepted as legitimate justifications for using force. In its official statements to the UN Israel did not claim any right to use force on the basis that the terrorist attack of 11 March alone gave it the right to invade Lebanon. Israel seemed to rely on two grounds: first, Israel suggested that it was acting to prevent further attacks by clearing out the PLO from Southern Lebanon; second, it argued that its actions in Lebanon had to be seen within the wider war against international terrorism. Since these are the two grounds that the Israeli Government relied upon, these will be the main focus below.

(p. 280) 1.  Using force in anticipatory self-defence

Whether force can be used in ‘self-defence’ to prevent future attacks has long been discussed; a description of the various arguments for and against is beyond the scope of this chapter.89 The issue provokes much debate, centred on whether Article 51 requires a state to wait until an armed attack has actually occurred, or whether a state can use force in anticipation of an expected or possible future attack, and a determination of the point at which a future attack becomes ‘imminent’. Another thread to this debate is whether Article 51 is the only means by which states may act in self-defence or whether customary international law preserves a wider right than the one codified in the UN Charter. From the author’s perspective, the fact that the Security Council unanimously condemned Israel’s bold attempt to rely on anticipatory self-defence is evidence that in March 1978 this was not an acceptable justification for the use of force. Given the lengths that Israel went to in outlining its history of suffering at the hands of its neighbours, Lebanon’s lack of control over its southern region and the supposed necessity to use force in order to prevent future attacks, one could say that this was a relatively strong case for advancing anticipatory self-defence. However, the argument fell flat in the Security Council. It was roundly rejected by all the Council members, as well as by several other states (eg Lebanon, Jordan, Libya, Sudan, and Syria) who were not members but who were permitted to participate in the debate. When reading the statements made by the various states in the Security Council debate, there is no sense that any state (except Israel) was willing to interpret self-defence in such a broad way as to give states a right to intervene militarily to prevent possible, as-yet-unknown attacks from occurring in the future. That seems sensible, given that the states expressed a desire for the Security Council to take charge of matters of international peace and security, rather than handing over carte blanche authority to individual states, even ones that had allegedly suffered a long list of attacks in the past.

2.  Reprisals

Ambassador Herzog stated in his address to the Security Council that the IDF operation in Lebanon was ‘not revenge or retaliation, for there is no way of avenging the lives of Israeli citizens’ but rather Israel’s aim was ‘to clear the PLO once and for all from the area bordering on Israel’.90 Thus, Israel did not try to justify its actions as a reprisal. Members of the Security Council upheld the accepted position under international law that ‘States have a duty to refrain from acts of reprisals involving the use of force’.91 Security Council members expressly rejected the concept of states ‘taking the law into their own hands’ to resolve disputes. Egypt, for example, criticized Israel for its actions, stating that ‘the Israeli invasion sets a dangerous precedent and makes brute force the sole arbiter in international relations’.92

Some scholars have argued that reprisals (although generally accepted to be unlawful) may sometimes be legitimate in circumstances where, inter alia, a state has been unable (p. 281) or unwilling to prevent terrorists from launching attacks against other states. Bowett was the first scholar to seriously advance this argument, on behalf of Israel in an article that preceded the 1978 incident.93 William O’Brien agreed and built upon this argument and updated the practice of the Security Council in this regard.94 Dinstein concurs and advances the concept of ‘defensive armed reprisals’, in essence, he believes that once one looks at the totality of circumstances surrounding the use of force, reprisals can sometimes be justified as self-defence. He argues that if a series of ‘pin-prick assaults form a distinctive pattern, a cogent argument can be made for appraising them in their totality as an “armed attack” ’. Drawing on a comment of Robert Ago, Dinstein argues that defensive armed reprisals could be a legitimate form of self-defence. It is logical to conclude that Dinstein would probably accept the legitimacy of Israel’s use of force in 1978 on that basis.95 However, both Dinstein and Israel appear to be in the minority in advancing this argument.96

In this author’s opinion, and despite the arguments put forward by some scholars, the use of force by Israel and the reaction to it by other states shows that there was no movement in 1978 from the traditional position on the unlawfulness of reprisals.

3.  Using force in response to acts of terrorism/attacks by armed bands

The Security Council’s members did not accept that the Fatah terrorist attack carried out on 11 March 1978 justified Israel’s response. For instance, France stated that:97

While it is clear that France regards terrorist acts as totally reprehensible, it is also clear that we have the same attitude towards acts of reprisal. Attempts to justify or explain the one by the other necessarily lead to an unacceptable situation of constant escalation, causing much loss of human life and challenging and endangering international security.

Jordan’s representative expressed a similar view by saying that ‘[i]nternal security within every country is the prerogative of the security forces within every State. If they are delinquent or clumsy, it is hardly a green light for violation of the inherent inviolability of neighbouring independent States’.98 Many other states did not mention the terrorist attack of 11 March, viewing instead Israel’s actions as blatant aggression and as an attempt to occupy more territory.

Some scholars, such as Dinstein, support the notion of ‘extra-territorial law enforcement’. That is to say, if a government (such as Lebanon) does not condone the operations of armed bands or terrorists emanating from another territory, but it is too weak to prevent such operations, then a victim state may use force to end the threat; it need not wait patiently simply because there is no sovereign state to blame. Dinstein’s theory would legitimize the 1978 use of force by Israel, in light of the circumstances described to the Security Council by both Lebanon and Israel: Lebanon had lost control over Southern Lebanon and could not have prevented this particular attack nor the use of these tactics by the PLO, even though it did not condone them. By 1978, the Lebanese army could not even enter (p. 282) Southern Lebanon and had arguably lost both military and political control over the PLO. Dinstein uses the term ‘extra-territorial law enforcement’ to describe the situation where one State uses cross-border counter-force against terrorists and armed bands and finds that it can sometimes be legitimate.99 Barry Feinstein, although not commenting specifically on the legality of the 1978 use of force, adheres to the same line of thinking.100 Bowett, Feinstein, and Dinstein built on arguments put forward in 1961 by Fawcett101 and in 1962 by Garcia-Mora102—the concept has been revived of late and has received renewed support in relation to Al Qaeda.103

Even if one accepts Dinstein’s theory, it is not entirely clear that the 14 March 1978 use of force by Israel would meet his criteria—for at least three reasons. First, Dinstein asserted that the forcible measures must be ‘reactive to an attack already committed by hostile armed bands or terrorists, and not only anticipatory of what is no more than a future threat’.104 In 1978, Israel claimed that its use of force was not in retaliation for or in revenge of the 11 March 1978 coastal road attack—Israel claimed that it was purely to prevent any future attacks from being launched from Southern Lebanon. Second, Dinstein claimed that ‘a repetition of the attack has to be expected, so that the extra-territorial law enforcement can qualify as defensive and not purely punitive’.105 In 1978, no repetition was expected. Third, Dinstein claimed that ‘the absence of alternative means for putting an end to the operations of the armed bands or terrorists has to be demonstrated beyond reasonable doubt’.106 In 1978, it was arguable that there were other solutions other than invading Lebanon by land, sea, and air: for instance, the Arab Deterrence Force could have been used to create a buffer zone in Southern Lebanon. In any event, Dinstein’s view of the use of force in response to terrorist attacks emanating from another state’s territory are at one end of a spectrum. Scholars such as Dinstein have been willing to go much further than states, and in 1978 it may be safe to conclude that only Israel was asserting the right to use force in these circumstances.

To conclude this section, three personal observations are offered with regards to the lawfulness of this particular use of force. First, reprisals were regarded as illegal—if it were otherwise, the international community, and the Security Council in particular, would have displayed a quite different reaction to Israel’s use of force against Lebanon.107 Second, defensive armed reprisals and extra-territorial law enforcement, as advanced by some scholars and by the State of Israel, were also considered to be unlawful. Third, anticipatory self-defence (ie the use of force against a sovereign state to prevent future but as yet unplanned attacks from emanating from that state’s territory) was not accepted as a lawful justification for the use of force. In short, this author agrees with the Security Council members who unanimously voted for Resolution 425—the use of force by Israel (p. 283) was an unlawful act of aggression, which could not be justified under any of the existing laws of international law.

IV.  Conclusion: Precedential Value

The use of force by Israel in 1978 and the international community’s response has important precedential value for two reasons. First, the Security Council unanimously condemned Israel’s use of force and no state in the Security Council—including the United States, the United Kingdom, and France—was willing to accept Israel’s justifications. Israel’s self-defence argument was roundly rejected and reprisals as a response to terrorism were unanimously condemned. Second, the Security Council maintained the same position that it had held throughout the 1960s and 1970s with regard to Israel’s use of force against its neighbours: it was not willing to change track in 1978 despite the terrorist attack of 11 March, and its Members were not willing to accept that a terrorist attack on Israel justified an invasion by Israel. This consistency and unanimity is significant, especially in the light of events post-2001. As will be discussed in later chapters of this book, there was allegedly a change in states’ (and scholars’) willingness to accept the use of force as a legitimate response to acts of terrorism after the 9/11 terrorist attack. Therefore, it is important to be able to look back at the events of 1978 and appreciate that the Security Council continued its long-held position and unanimously rejected Israel’s arguments that a terrorist attack on its soil gave it the right to invade another sovereign country.

Footnotes:

1  For instance, see ‘Operation Litani (1978)’ Ynet news (15 March 2009) available at <http://www.ynetnews.com/articles/0,7340,L-3686831,00.html>.

2  Centre for Israel Education, ‘Coastal Road Massacre’ (11 March 2016) available at <https://israeled.org/coastal-road-massacre/>.

3  Jewish Telegraphic Agency, ‘A Day of Terror’ (13 March 1978) available at <http://www.jta.org/1978/03/13/archive/a-day-of-terror>.

4  Israel Ministry of Foreign Affairs ‘32nd anniversary of the Coastal Road Massacre’ (11 March 2010) available at <http://mfa.gov.il/MFA/ForeignPolicy/Terrorism/Palestinian/Pages/32nd_anniversary_coastal_massacre_11-Mar-2010.aspx>. Note that some sources relate that the passengers of the first bus boarded the second, and some sources refer to the opposite scenario, but for the purposes of this article determining the truth regarding this minor fact is unimportant.

5  Israel Ministry of Foreign Affairs, Statement to the press by Prime Minister Begin on the massacre of Israelis on the Haifa-Tel Aviv road (12 March 1978) available at <http://www.israel.org/MFA/ForeignPolicy/MFADocuments/Yearbook3/Pages/133%20Statement%20to%20the%20press%20by%20Prime%20Minister%20Begin.aspx>. Slightly different figures are found in different sources.

6  Naomi Joy Weinberger, Syrian Intervention in Lebanon (OUP 1986) 276–77.

7  ibid 278. Moreover, in 1954, Israeli Prime Minister Moshe Sharet stated that Israel would give ‘all possible assistance’ to a Maronite uprising aimed at portioning Lebanon even if such uprising had ‘no chance of success’. The hope was that if Lebanon were partitioned, the Christians would take the Northern and Israel Southern Lebanon: ibid.

8  In a letter from the British Foreign Office to the French representative in Lebanon one month prior to the conclusion of the 1920 Franco–British Convention, the British authorities requested some control of the Yarmouk and Litani Rivers, citing pressure from the World Zionist Organization and its head, Chaim Weizmann: see Mark Zeitoun, Michael Talhami, and Karim Eid-Sabbagh, ‘The Influence of Narratives on Negotiations and Resolution of the Upper Jordan River Conflict’ (2013) 18 International Negotiation 293, 303–04. Zeitoun et al refer at 303 to the ‘well-documented pre-state of Israel’s Zionist lobbying of colonial French and British mandate authorities to acquire or use the Litani River’.

9  Zeitoun et al note that this narrative—that Israel had plans to steal Lebanese water—was not at all harmed by Israel’s decision to name its 1978 invasion ‘Operation Litani’: ibid 304.

10  See discussion in Jonathan Spyer, ‘Israel and Lebanon: Problematic Proximity’ in Barry Rubin (ed), Lebanon: Liberation, Conflict and Crisis (Palgrave Macmillan 2009) 197.

11  Helena Cobban, The Palestinian Liberation Organisation: People, Power and Politics (CUP 1984) 47.

12  Noam Chomsky, Fateful Triangle (Pluto Press 1999) 336.

13  Jonathan Spyer notes that, ‘For Lebanon, Israel’s establishment was the primary cause for the eventual arrival of the Palestinian national movement to within its borders in 1970. This, in turn, was a key factor in precipitating the country’s ruinous civil war, the Israel-PLO war on Lebanese soil in 1982, the partial collapse of Lebanese sovereignty after the Syrian entry in 1990, and the partial Israeli occupation of Southern Lebanon until 2000. This calamitous series of events has continued to the present day’: see Spyer (n 10) 196.

14  ibid 198.

15  Helen Chapin Metz, Israel: A Country Study, Area Handbook for Israel (3rd edn, US Government Printing Office 1990) 70.

16  Spyer (n 10) 196.

17  UNSC Official Records (17 March 1978) UN Doc S/PV.2071 [48]–[49].

18  For details on the Israeli response see the Jewish Virtual Library ‘Israel’s Wars and Operations: Operation Gift’ available at <http://www.jewishvirtuallibrary.org/jsource/Terrorism/gift.html>.

19  The Security Council unanimously condemned the Israeli use of force against Lebanon in 1968 via UNSC Res 262 (31 December 1968) S/RES/262. For a deeper discussion of this particular use of force see Christine Gray, International Law and the Use of Force (OUP 2000) 116 and footnote references therein.

20  Chomsky (n 12) 337.

21  See Noam Chomsky, ‘Limited War in Lebanon’ Z Magazine (September 1993) available at <https://chomsky.info/199309__/>.

22  ibid; see also Chomsky (n 12) 191.

23  Mr Terzi, representing the PLO, referred to this incident in his address to the Security Council on 17 March 1978 when he said: ‘On 9 November 1977, Israeli aircraft—and again I say supplied and provided gratis or almost gratis by the United States—struck and leveled a village. The result was more than 100 children killed – and nobody seems then to have raised a voice’: S/PV.2071 (n 17) [133].

24  Major Sa’ad Haddad was a regular officer in the Lebanese army who was sent with the blessing of at least part of the Christian community (the Chamounists) to organize the defences of the south: see Yair Evron, War and Intervention in Lebanon: The Israeli-Syrian Deterrence Dialogue (John Hopkins University Press 1987) especially at 69ff.

25  Eighth Knesset, Government 17, under Prime Minister Yitzak Rabin, 3–20 June 1977, <https://knesset.gov.il/govt/eng/GovtByNumber_eng.asp?govt=17>.

26  See discussion in Itamar Rabinovich, The War for Lebanon 1970-1985 (Cornell University Press 1985) 106.

27  Evron (n 24) 72.

28  See Jeffrey White, Towards the Litani Campaign: An Assessment of the Begin Government’s Policy in Lebanon and the March 1978 Incursion (manuscript 1983) at 13–14, as cited by Evron (n 24) 72 fn 14.

29  Rabinovich (n 26) 107.

30  ‘Dec 1977—Fighting in South—Increased Israeli Involvement—Diplomatic Exchanges culminating in the Chtaura Peace Agreement—Subsequent Developments’ (December 1977) 23 Keesing’s Record of World Events, Lebanon 28734.

31  Jeffrey White argued that once Israeli involvement began in 1977, and the United States tried to negotiate a ceasefire, Israel decided to use this opportunity to try for an overall settlement of the situation in south Lebanon: see Evron (n 24) 73, citing White at footnote 18.

32  Evron (n 24) 73.

33  ibid 73–74.

34  ‘Jun 1979—Israeli Invasion of Southern Lebanon, March 1978—Deployment of UN Peacekeeping Force—Israeli Withdrawal’ (December 1977) Keesing’s Record of World Events, Israel, Lebanon 29648.

35  ibid. See also Evron (n 24) 76–77.

36  According to Keesing’s Record of World Events, on 15 March, Israeli planes hit targets north of the Litani River including the town of Damour and the Palestinian camps of Chatila, Sabra, and Bourj al Baradni on the outskirts of Beirut: ibid.

37  For an account of the UNIFIL peacekeeping mission in Southern Lebanon, see Alexandra Novosseloff, ‘United Nations Interim Force in Lebanon (UNIFIL I)’ in Joachim Koops, Norrie MacQueen, Thierry Tardy, and Paul D Williamson (eds), The Oxford Handbook of United Nations Peacekeeping Operations (OUP 2015).

38  ‘Statement to the Knesset by Prime Minister Begin on the terrorist raid and the Knesset resolution’ (13 March 1978) available at <http://www.israel.org/MFA/ForeignPolicy/MFADocuments/Yearbook3/Pages/134%20Statement%20to%20the%20Knesset%20by%20Prime%20Minister%20Beg.aspx>.

39  ‘First, Lebanon had no connection with the commando operation on the road between Haifa and Tel Aviv or with any other commando operation. Secondly, it is a well-known fact that Lebanon is not responsible for Palestinian bases in southern Lebanon in the present circumstances. The Lebanese Government has exerted tremendous efforts with the Palestinians and the Arab States in order to keep matters under control’: Letter dated 15 March 1978 from the Permanent Representative of Lebanon to the United Nations addressed to the President of the Security Council (15 March 1978) UN Doc S/12600.

40  ‘Statement to the Knesset by Prime Minister Begin on the terrorist raid and the Knesset resolution’ (n 38) Knesset resolution, [3].

41  Evron (n 24) 74.

42  ibid.

43  ibid, citing Prime Minister Begin’s address to the Knesset on 13 March 1978 (n 38).

44  ‘Jun 1979—Israeli Invasion of Southern Lebanon, March 1978—Deployment of UN Peacekeeping Force—Israeli Withdrawal’ (June 1979) 25 Keesing’s Record of World Events, Israel, Lebanon 29648.

45  Letter dated 17 March 1978 from the Permanent Representative of Israel to the United Nations addressed to the President of the Security Council (17 March 1978) UN Doc S/12607.

46  Letter dated 15 March 1978 from the Permanent Representative of Lebanon … (n 39).

47  UN Doc S/PV.2071 (n 17) [38].

48  ibid [52].

49  Statement to the Security Council of Ambassador Herzog (17 March 1978) available at <http://www.israel.org/MFA/ForeignPolicy/MFADocuments/Yearbook3/Pages/136%20Statement%20to%20the%20Security%20Council%20by%20Ambassado.aspx>, citing excerpts from S/PV.2071 (n 17) [19]–[70].

50  ibid.

51  ibid.

52  Letter dated 8 September 1978 from the Permanent Representative of Israel to the United Nations addressed to the General Assembly (8 September 1978) UN Doc S/12840.

53  Latif Abdul-Husn, The Lebanese Conflict: Looking Inward (Lynne Reiner Publishers 1998) 61.

54  ibid.

55  ibid, footnote 17 citing Fiches du Monde Arabe (19 April 1978) no 933.

56  There was a long-standing relationship, which pre-dated the State of Israel, between the Maronites and the Zionists. Both sides were wary of the other but felt that they had common enemies, especially in the 1970s, in the form of Syria and the PLO. For a detailed account of the secret contacts between the Mossad Intelligence Agency and leaders of both the Phalange and Chamoun militias, see Ze’ev Schiff and Ehud Ya’ari Israel’s Lebanon War (Ina Friedman trs and ed, George Allen & Unwin 1984) especially at 11–23.

57  According to the Lebanese Government, Israeli forces invaded by land, sea, and air killing an unknown number of civilians, causing ‘enormous damage’ and displacing many: Letter dated 15 March 1978 from the Permanent Representative of Lebanon … (n 39).

58  ibid.

59  ibid.

60  The United States was the only state that opposed the PLO’s request to participate in the debate and to make a statement and it was the only state that voted against the proposal to allow the PLO to participate: UN Doc S/PV.2071 (n 17) adoption of the agenda, [1]–[6].

61  ibid [127] (PLO).

62  For instance, he noted that ‘[i]n 1919, the Zionist organization drew up its future aim for this Jewish homeland, and said that in the north the border of the Jewish homeland would be “at a point on the Mediterranean Sea in the vicinity of Sidon and following the watersheds of the foothills of the Lebanon as far as Jisr El Karaon …” … that is exactly the territory where Israeli operations have been conducted during the last few days’: UN Doc S/PV.2071 (n 17) [132].

63  ibid [77], [78].

64  UNSC Verbatim Record (19 March 1978) UN Doc S/PV.2074 [161].

65  Evron (n 24) 75.

66  ibid 76–77.

67  ibid 77.

68  US Secretary of State Cyrus Vance informed Secretary-General Kurt Waldheim on the day of the Israeli invasion that ‘the United States sees no other solution to the crisis in Southern Lebanon than a UN force’: Bjoern Skogmo, International Peacekeeping in Lebanon 1978-1988 (Lynne Reiner 1988) 8.

69  Evron (n 24) 78 footnote 24 citing Assad’s speech.

70  ibid, citing a personal interview between Evron and Gur.

71  UN Doc S/PV.2071 (n 17) [92] (Syrian Arab Republic).

72  ibid [93] (Syrian Arab Republic).

73  ibid [98] (Syrian Arab Republic).

74  Note by the President of the Security Council (16 March 1978) UN Doc S/12604, Annex 1.

75  UN Doc S/PV.2071 (n 17) [112] (Libyan Arab Jamahiriya).

76  Evron (n 24) 76 footnote 21 citing Ezer Weitzman, The Battle for Peace (in Hebrew) 254.

77  ibid 80.

78  UNSC Verbatim Record (18 March 1978) UN Doc S/PV.2072 [7].

79  ibid [28] (Kuwait).

80  UN Doc S/PV.2074 (n 64) [46]–[47].

81  Note by the President of the Security Council (n 74).

82  Co-ordinating Bureau of the Non-Aligned Movement, SCOR S/12609.

83  UNSC Resolution 425 (19 March 1978) UN Doc S/RES/425 (1978) adopted during UNSC Meeting (19 March 1978) UN Doc S/PV.2074, 12 votes to 0, with 2 abstentions (Czechoslovakia and USSR).

84  UNSC Resolution 426 (19 March 1978) UN Doc S/RES/426: the resolution was adopted by 12 votes in favour, 0 against, with 2 abstentions (Czechoslovakia and the Soviet Union); the People’s Republic of China did not participate in the vote, see UNSC Verbatim Record (19 March 1078) UN Doc S/PV.2075.

85  S/PV.2074 (n 64) [19] and [24]–[29].

86  UN Doc S/PV.2071 (n 17).

87  For a detailed discussion of the meaning of ‘armed attack’ and how this term has been interpreted in both the UN Charter and the NATO agreement, see, inter alia, Myra Williamson, Terrorism, War and International Law: The Legality of the Use of Force against Afghanistan in 2001 (Ashgate 2009) esp chapter 5.

88  ‘… while the concept of armed attack includes the despatch by one State of armed bands into the territory of another State, the supply of arms and other support to such bands cannot be equated with armed attack …’: Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Judgment, Merits) [1986] ICJ Reports at 126–27.

89  For a full discussion of this issue see, eg, Gray (n 19) esp chapter 4; Stanimir A Alexandrov, Self Defense Against the Use of Force in International Law (Kluwer Law International 1996) esp 149ff; Yoram Dinstein, War, Aggression and Self-Defence (4th edn, CUP 2005) esp 182ff; Williamson (n 87) 117ff.

90  UN Doc S/PV.2071 (n 17) [57].

91  The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625 (XXV).

92  UNSC Verbatim Records (18 March 1978) UN Doc S/PV.2072 [35] (Egypt).

93  See Derek Bowett, ‘Reprisals Involving Recourse to Armed Force’ (1972) 66 American Journal of International Law 31.

94  William V O’Brien, ‘Reprisals, Deterrence and Self-Defense in Counterterror Operations’ (1990) 30 Virginia Journal of International Law 421, esp at 445–50 on the Litani Operation.

95  See Dinstein (n 89) 230ff.

96  Dinstein observes that ‘no country in the world seems to have adhered more consistently to a policy of defensive armed reprisals than the State of Israel’: ibid 230.

97  UN Doc S/PV.2072 (n 92) [47] (France).

98  UN Doc S/PV.2071 (n 17) [72] (Jordan).

99  See Dinstein (n 89) 244ff.

100  Barry A Feinstein, ‘The Legality of the Use of Armed Force by Israel in Lebanon—June 1982’ (1985) 20 Israel Law Review 362. Feinstein does not discuss the legality of the 1978 use of force in that article, but following his line of reasoning regarding 1982, it is fairly safe to conclude that he would have accepted the 1978 invasion as legitimate.

101  James ES Fawcett, ‘Intervention in International Law: A Study of Some Recent Cases’ (1961) 103 Academie de Droit International, 2 Recueil des Cours 363.

102  Manuel Garcia-Mora, International Responsibility for Hostile Acts of Private Persons Against Foreign States (Nijhoff 1962) esp at 27.

103  See for instance Ruth Wedgewood, ‘Responding to Terrorism: The Strikes Against Bin Laden’ (1999) 24 Yale Journal of International Law 559, 565.

104  Dinstein (n 89) 250.

105  ibid.

106  ibid.

107  This conclusion is to be contrasted with Bowett’s argument in his famous 1972 article in which he predicted that ‘we shall achieve a position in which, while reprisals remain illegal de jure, they become accepted de facto’: see Bowett (n 93) 10–11.