Israel’s claim to self-defence has a “very high plausibility”

Published: 14 February 2018 Author: Stefan Talmon

On 10 February 2018, Israel claimed that it intercepted an Iranian drone that had penetrated its airspace from Syria. Israeli Prime Minister Benjamin Netanyahu stated:

“I have been warning for some time about the dangers of Iran’s military entrenchment in Syria. Iran seeks to use Syrian territory to attack Israel for its professed goal of destroying Israel.

This morning Iran brazenly violated Israel’s sovereignty. They dispatched an Iranian drone from Syrian territory into Israel. And this demonstrates that our warnings were 100% correct.

Israel holds Iran and its Syrian hosts responsible for today’s aggression. We will continue to do whatever is necessary to protect our sovereignty and our security.”

In response, Israel bombed what it called the command-and-control centre from which Iran had launched the drone at a Syrian air base near Palmyra. During the operation, one Israeli fighter jet was hit by a Syrian anti-aircraft missile over Syria and crashed in northern Israel. This triggered further large-scale Israeli air raids against Iranian and Syrian targets in Syria.

Asked about the military escalation between Iran, Syria and Israel over the weekend, and whether the German Government supported Israel’s right to self-defence, the government spokesperson said on 12 February 2018:

“The Federal Government has repeatedly pointed out that it is firmly convinced that Israel has the right to defend itself against attacks. We have also repeatedly expressed our concern that Iran’s military involvement in Syria and Lebanon – in particular through Iran-led militias – is contributing to a dangerous escalation of the Syrian civil war. For that reason, the Federal Government urges Iran to abandon its aggressive attitude towards Israel and to give up altogether on its aggressive policy towards the State of Israel.”

The government spokesperson was careful to endorse a right to self-defence against attacks only in general terms leaving open the question of whether the alleged incursion of an Iranian drone into Israeli air space constituted an armed attack in terms of Article 51 of the Charter of the United Nations, which gave rise to a right of self-defence in the situation in question.

The spokesperson for the Federal Foreign Office simply recounted that Israel had relied on the right to self-defence in order to justify its bombing raids in Syria. The German Government was not in a position to verify the claim of an Iranian drone entering Israeli air space. The spokesperson, however, continued:

“In fact, this was not the first incident involving an Iranian drone entering Israeli airspace. That is why it can be said, so to speak, with certainty but without being based on our own intelligence, that the Israeli claim to act in this way has a very high plausibility.”

Again, this carefully phrased statement fell short of an outright endorsement of an Israeli right to self-defence in the situation concerned.

While Israel is, of course, entitled to shoot down any Iranian drone entering its air space from Syria without its consent, it may be questioned whether the incursion of an unarmed drone into Israeli air space amounted to an “armed attack” on Israel by Iran or Syria. The International Court of Justice pointed out that the notion of an armed attack requires a certain magnitude, which distinguishes “the most grave forms of the use of force (those constituting an armed attack) from other less grave forms.” In any case, the severe retaliation by Israel to the downing of one of its fighter jets by Syrian air defences might be challenged on the grounds that Syria itself may have been acting in self-defence against an Israeli armed attack.

Category: Use of force

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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