Published: 22 May 2018 Author: Stefan Talmon
Since the 1979 Islamic revolution in Iran, relations between Israel and the Islamic Republic of Iran may be described as hostile, at best. The Islamic Republic of Iran does not recognize Israel’s right to exist and, on occasion, has threatened to “destroy Israel”. Iran has long supported armed groups opposed to Israel, in particular Hezbollah in Lebanon. When civil war broke out in Syria in 2011, Iran intervened on the side of the Syrian Government providing military, financial, logistical and intelligence support to the forces of President Assad. By 2018, it was estimated that Iran had deployed several thousand troops and officials in Syria.
On 10 May 2018 an Israel Defence Forces (IDF) spokesman told reporters that at around 10 minutes past midnight, forces belonging to the Iranian Revolutionary Guards’ Quds Force fired approximately 20 projectiles, most of them rockets, from positions in Syria towards the forward line of IDF positions in the Golan Heights. The Golan Heights were captured by Israel from Syria in the Six-Day War in June 1967 and were annexed by Israel in December 1981 – a move that was not recognized internationally. There were no Israeli casualties and no damage was reported. None of the rockets hit their targets, either being intercepted by Israeli air defence or falling short and landing in territory under Syrian government control.
Within hours, Israel bombed more than 70 Iranian positions inside Syria, including Iranian intelligence assets and logistics dumps, as well as Syrian anti-aircraft units that tried unsuccessfully to shoot down Israeli planes. The Israeli Defence Minister later said that the IDF hit “almost all of the Iranian infrastructure in Syria.”
In a phone conversation with Iranian President Hassan Rouhani on the same day, Chancellor Angela Merkel “condemned Iran’s nightly attacks on Israeli military positions on the Golan Heights and called on Iran to contribute to de-escalation in the region.” On 10 May 2018, a Federal Foreign Office spokesperson issued the following statement regarding Iranian attacks on Israeli units:
“We are deeply concerned by reports about last night’s Iranian rocket attacks on Israeli army outposts. These attacks are a severe provocation that we most strongly condemn. We have always emphasised that Israel has the right to defend itself.
At the same time, it is key that the situation must not escalate any further. Specifically, this means we must do everything we can to finally arrive at a sustainable political solution to the conflict in Syria – which is needed to end the suffering of the Syrian population, and to prevent further threats to stability in the entire region.”
In a phone call with Israeli Prime Minister Benjamin Netanyahu on 15 May 2018, Chancellor Merkel “condemned the recent Iranian attacks on Israeli military positions on the Golan Heights and underlined the Israeli right to self-defence.” As on other occasions, Germany affirmed Israel’s right to self-defence in general terms without pronouncing on the legality of the military strikes in question.
There is no question that, in principle, Israel has a right to defend itself against any Iranian armed attack, irrespective of whether the attack is launched from Iran or from the territory of neighbouring Syria. The Israeli response to the rocket attack on 10 May 2018, however, raised several question with regard to the law of self-defence. First, a right of self-defence against Iran would require an armed attack by Iran. The rockets were not fired by Iran’s regular armed forces. An IDF spokesman stated: “At the Quds Force’s orders, and under Iranian command in the attack’s command and control circles, about 20 rockets were fired by Hezbollah experts and Shiite militias with Iranian weapons.” The International Court of Justice (ICJ) held in the Nicaragua case that
“an armed attack must be understood as including not merely action by regular armed forces across an international border, but also ‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or its substantial involvement therein’.”
The fact that the rockets were not fired by members of the Quds Force themselves is thus irrelevant as long as Israel can prove that the “Hezbollah experts and Shiite militias” acted on the instructions of, or under the direction or control of, Iran in carrying out the rocket attack. The action by irregular forces, however, must be of such gravity as to amount to an actual armed attack conducted by regular forces. The ICJ held that the scope and effect of the acts of irregular forces must amount to more than “a mere frontier incident”. There is no definition in international law of the term “frontier incident”. State practice shows that incidents with several dozen dead and more than one hundred injured have been classified as mere “frontier incidents”. It may thus be questioned whether the rocket attack actually qualified as an “armed attack” giving rise to a right to self-defence. In any case, the right of self-defence is subject to the requirements of necessity and proportionality. Self-defence warrants only measures which are proportional to the armed attack and necessary to respond to it. Commenting on Israel’s “very wide-ranging attack against Iranian targets in Syria”, Israeli Prime Minister Benjamin Netanyahu stated that “[w]hoever hurts us – we will hurt them sevenfold”, and Israeli Defence Minister Avigdor Liberman added that “if there is rain on our side, there will be a flood on their side”. These statements raise questions about the proportionality of Israel’s response to the rocket attack. The IDF’s strikes against Iranian targets in Syria may actually have been aimed at preventing a further entrenchment of Iran in Syria rather than at defending Israel against the actual rocket attack. While Israel has, in principle, a right to self-defence against Iranian armed attacks, its massive military response to the rocket attack on 10 May 2018 was not covered by that right.
Category: Use of force