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The Beirut Raid and the International Law of Retaliation

Published online by Cambridge University Press:  28 March 2017

Richard A. Falk
Richard A. Falk*
Affiliation:
Princeton University and Center for Advanced Study in the Behavioral Sciences
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Extract

On the night of December 28, 1968, eight Israeli helicopters took part in an attack on the Beirut International Airport. Israeli commandos descended from six of the helicopters (the other two hovered above) that had landed either on runways or at the hangars of the airport. All commercial aircraft belonging to Arab airlines were destroyed by explosives being placed in the nose-wheel well and in the undercarriage well of each plane. The attack resulted in the destruction of 13 planes whose worth has been estimated to be $43.8 million. Additional damage has been reported done to hangars and other airport installations. Lebanese sources report that two Israeli commandos were injured by gunfire from airport guards. There was no loss of life.

Type
Research Article
Information
American Journal of International Law , Volume 63 , Issue 3 , July 1969 , pp. 415 - 443
Copyright
Copyright © The American Society of International Law 1969

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References

1 According to the New York Times, Jan. 5, 1969, Sec. 4, p. 1, the owners of the airlines whose planes were destroyed were not only the Arab governments. Middle East Airlines, which lost eight aircraft, is owned 30 percent by Air France, 5 percent by Lebanese individuals, and 65 percent by Intra Company, an inter-governmental corporation constituted by the Kuwaiti, Qatari, Lebanese, and United States governments. The United States is evidently represented by the Commodity Credit Corporation, which is owed money for wheat sales by Intrabank, a predecessor of Intra Company. Lebanese International Airways, which lost three planes, is 58 percent American-owned. Trans-Mediterranean Airways, which lost two planes, is owned by private Lebanese interests. Early reports indicated that British insurance underwriters had agreed to accept $18 million in claims, rejecting claims from policies that did not cover war risks. Note that, aside from Lebanon, none of the interests affected by the Beirut raid involved principal Arab countries. For a detailed inventory of the damage done in the raid, including damage to terminal facilities, see letter of Jan. 14, 1969, from Assad Kotaite, the Lebanese Representative on the Council of the International Civil Aviation Organization, to the Secretary General of I.C.A.O., WP/4945, Jan. 1, 1969.

2 There are several ” liberation ” groups constituted by Palestinian refugRes. The most important group is the Palestine Liberation Organization now presided over by Tasr Arafat. Arafat earned his reputation, and remains, as the leader of Al Fatah, which is the military commando section of Al Asifa. Then there is a group called the Popular Liberation Corps, with anonymous leadership, and associated with the Palestinian branch of the Baath party. Finally, there is the Popular Front for the Liberation of Palestine headed by Dr. George Habbash. It is the Popular Front, a relatively secondary liberation group, that has claimed credit for the attacks on El Al planes. This Popular Front has been weakened by an internal split which led COO of its estimated 2,000 members to join the Marxist-Leninist Popular Democratic Front for the Liberation of Palestine in late 1968 and early 1969. See note 16.

3 CF. Ambassador Shabtai Eosenne of Israel, International Civil Aviation Organization, Minutes of Third Meeting of the Extraordinary Session of the Council, Jan. 23, 1969, p. 5.

4 This account of the arraignment proceedings is based on an article in the Now York Times, Dec. 31, 1968, p. 3. This contention must be set off against some of the elements of the attack itself. The assailants evidently could have proceeded more easily to destroy the plane when it was empty and yet chose to wait until it was loaded for take-off. In fact, the semi-official Egyptian newspaper, Al Ahram, praised the members of the liberation group for their willingness to wait at the airport at risk to themselves until their attack would have maximum effect, and exaggerated the damage done by falsely reporting that the El Al plane was destroyed by fire. Al Ahram, Dec. 27, 1968, p. 1.

5 For thfe text of the two letters, both dated Dec. 29, 1968, requesting an urgent meeting of the Security Council, see S/8945, S/8946.

6 S/Res/262 (1968). For the reactions of various delegations to this resolution, see S/PV. 1462, Dec. 31, 1968, pp. 7-88. The factual circumstances surrounding the Beirut raid, as well as their divergent interpretations, are well stated by the representatives of Lebanon and Israel in their presentations to the Security Council. See S/PV. 1400, Dec. 29, 1968, pp. 6-27, S/PV. 1461, Dec. 30, 1968, pp. 11-20, 43-62.

7 For full text see S/PV. 1462, p. 6; 6 U. N. Monthly Chronicle 19 (January, 1969); also reprinted below, p. 681.

8 Ambassador Eosenne 's initia statement in the Security Council specifically invoked this earlier interference with an international flight of El Al Airlines as a part of the context which conditioned the decision to make the Beirut reprisal raid, cf. debate of December 29, 1968, in the Security Council, S/PV. 1460, p. 23. Note that Lebanon was not the sole target; all Arab-owned aircraft at the airport were destroyed. See note 1 for specification. As was made clear at various points by Mr. Eosenne and later by Mr. Tekoah, the Beirut raid was intended as a warning directed at all Arab governments.

9 For statistics on comparative arms expenditures in the Middle Bast, see Safran, Nadav, Prom War to War: The Arab-Israeli Confrontation, 1948-1967, pp. 433-434 (New York: Pegasus, 1969).Google Scholar

10 For an account of the Iraqi hangings see The Economist, Feb. 1, 1969, p. 20. Eight more persons, all Moslems, were reportedly executed for similar crimes on Feb. 20, 1969. A further report indicates that in a third Iraqi spy trial seven more persons have been condemned to death, including two or three Jews and a former Premier of Iraq, Dr. Abdel Eahman Al-Bazzaz. New York Times, March 1, 1969, p. 9.

11 “There is still little talk here of an Israeli military reaction to the hangings, inpart because this would contradict the Israeli policy of using raids as warnings rather than reprisals, and also because this might do more harm than good.” James Feron, “Israeli Consulting on Ways to Assist the Jews of Iraq,” New York Times, Jan. 30, 1969, pp. 1-2, at p. 2.

12 See article by James Feron, “Israel Ponders Issue of Eeprisal,” ibid., Feb. 2, 1969, Sec. 4, p. 1.

13 For various accounts of the Zurich attack and reactions to it, see New York Times, Feb. 19, 1969, pp. 1, 2, 3 ; Feb. 20, 1969, pp. 1, 3.

14 Ibid., March 1, 1969, pp. 1, 14.

15 See James Feron, “New Israeli Strategy Seen in Eaid Near Damascus,” ibid., Feb. 25, 1969, p. 3.

16 For some discussion of the differences between the activities of these Arab guerrilla groups, see Dana Adams Schmidt, ” A n Arab Guerrilla Chief Emerges,” New York Times, March 4, 1969, p . 6. On the different ideas of tactics between the two main Arab organizations, Al Fatah and the Popular Front, see another report by Schmidt, ibid,., Feb. 20, 1969, p. 2.

17 Mr. Boutros, the Lebanese representative who appeared before the Security Council, offered a categorical denial of any governmental responsibility for the Athens incident in the following principal language: ” … Lebanon cannot be held responsible for acts which were committed by Palestinian refugRes outside its territory and of course without its knowledge, and which were committed by Palestinian refugRes whose intentions were not known to Lebanon.” Furthermore, ” … If Israel really felt that Lebanon was responsible for the incident at Athens, [why] did it not immediately file a complaint against Lebanon in the Council.” S/PV. 1461, Dec. 30, 1968, p. 12.

18 See New York Times, Jan. 5, 1969, See. IV, p. 1; for further documentation of Lebanese praise for the work of the Popular Front (and other liberation efforts), see release of Israel's Information Office, “The Israeli Action at the Beirut Airport,” Dec. 28, 1968. This document included the following quotation attributed to Mr. Yaffi, the Lebanese Prime Minister, on Nov. 2, 1968: “Fedayeen action is legitimate, and no one can condemn the fedayeen for what they are doing. Their aim is to retrieve their homeland and their plundered rights… . Thus, I say, fedayeen action is legal.” Israeli sources have also quoted specific Lebanese praise for the perpetrators of the Athens incident. See Mr. Tekoah's statement before the Security Council (S/PV. 1461, pp. 52-55), especially the following excerpt: “The attention of the Lebanese Government has been drawn on numerous occasions to the activities of the terror organizations within its borders. The Lebanese Government, however, has not only continued to condone these activities, but has publicly identified itself with them. Prime Minister Al-Yafi has announced several times that his Government supports terror operations against Israel.” S/PV. 1461, p. 52.

19 Mr. Boutros indicated that he had “reservations” about the action of the Security Council because ” i t did not draw the conclusions to which the findings should have led and it hesitated to order the application of Chapter VII of the Charter to Israel.“” S/PV. 1462, p. 81.

20 Mr. Tekoah, in reacting to the adverse judgment of the Security Council, said: “Let no one make the mistake of thinking that the people of Israel might be swayed by inequitable pronouncements.” Further, ” … not Security Council resolutions, but the attitude and actions of the Governments in the area will determine the destiny of the Middle East.” S/PV. 1462, p. 52.

21 A somewhat more balanced debate took place at I.C.A.O., Minutes of the First, Second, Third, and Fourth Meetings of the Extraordinary Session of the Council, Jan. 20, 21, 23, 31, 1969.

22 For over-all legal perspective, with representative statements by adversary analysts, see the symposium published under the title “The Middle East Crisis: Test of International Law,” 32 Law and Contemporary Problems 1-193 (Winter, 1968); W. V. O'Brien, “International Law and the Outbreak of War in the Middle East,” 11 Orbis 692, 723 (1967). For general background see Safran, Nadav, From War to War. The Arab-Israeli Confrontation, 1948-1967 (New York: Pegasus, 1969)Google Scholar; Khouri, Fred J., The Arab-Israeli Dilemma (Syracuse University Press, 1968)Google Scholar. On problems of biased and incompatible perception of identical circumstances in relation to international conflict, see White, Ralph K., Nobody Wanted War: Mispereeption in Vietnam and Other Wars (Garden City, N. Y.: Doubleday, 1968).Google Scholar

23 There are problems of characterization arising from contradictory interpretation of the facts (e.g., extent of knowledge by Lebanese officials of the activities of the Popular Front), of the legal duties (e.g., extent of obligation to regulate activity of liberation activities within territory), and of policy issues (e.g., conflict between security of territory and recourse to retaliatory force).

24 Although variations of terrain, tradition, and political milieu make certain societies very susceptible to internal opposition of an insurgent character; also, of course, in many parts of Asia, Africa, and Latin America the central government is not able to exert its control over the entire expanse of national territory. Of course the logic of governmental control involves the capacity to control liberation activity as well as the incentive to engage in it.

25 There is also absent any consensus as to the character of political legitimacy in international society. The presence of such a consensus induces moderation in the choice of means and ends of political conflict; its absence induces extremist tactics and strategy,- making compromises difficult to specify, and giving a prominent r?1e to violence and warfare. See Henry A. Kissinger, “Central Issues of American Foreign Policy,” in Kermit Gordon (ed.), Agenda for the Nation 585-614, esp. 585-589 (Washington: Brookings Institution, 1968). The sharpest global cleavage related to political legitimacy is concerned with the status of radical socialism as the basis for organizing a sovereign state. The Arab-Israeli conflict that can be expressed in several distinct fashions, perhaps most fundamentally in terms of the status of Zionist claims, is one in which there is almost no consensus as to legitimacy. There is not even a willingness to accept as settled the right of Israel to exist as a distinct sovereign state.

26 One might also mention the psychological support given exile groups from East Europe by the official Congressional celebration of ‘ ‘ Captive Nations’ Week'’ each year. For legal critique see Q. Wright, “Subversive Intervention,” 54 A.J.I.L. 521 (1960). In Sec. 101 of the Mutual Security Act of 1951 (in similar legislative enactments of several subsequent years) the U. 8. Congress appropriated and earmarked 100 million dollars for escapRes from Eastern Europe for a Liberation Legion for Eastern Europe, specifically ” t o form such persons into elements of the military forces supporting the North Atlantic Organization or for other purposes.” 46 A.J.I.L. Supp. 14 (1952). For citations see 2 American Foreign Policy, 1950-1955, Basic Documents 3060, 3119.

27 There is some polemical treatment of these issues in relation to the controversy over the legal status of support for various kinds of “wars of national liberation.” But there has been no effort to deal with the generality of claims in light of some consistent body of doctrine.

28 In this regard see the Declaration on Inadmissibility of Intervention, adopted as Resolution 2131 (XX) of the General Assembly on Dec. 21, 1965; 60 A.J.I.L. 662 (1966). In recounting the grave concern of the membership with ” t h e increasing threat to universal peace due to armed intervention and other direct or indirect forms of interference,” the Declaration “solemnly declares” in its second numbered paragraph that: ” … Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.” Such a contradiction between Assembly assertion and liberation practice helps discredit the guidance r61e of international norms and to give comfort for those who would dismiss restraints upon violence as “legalisms.“

29 Compare Security Council statements of Mr. Boutros and Mr. Tekoah on the issue of responsibility. S/PV. 1461, pp. 12-20, 46-56

30 A consensus within the General Assembly is strongly supportive of anti-colonial and anti-racist liberation movements. This attitude of support has assumed a quasilegislative status because of the law-creating rôdle of the Organization. See, generally, Falk, The Status of Law in International Society, Ch. VI (Princeton University Press, 1969).

31 The statement in the text is a very crude generalization. The effect of exerting governmental control of varying degrRes over different categories of liberation group activity varies from country to country in the Arab world and through time in each country. In general, Jordan has been most vulnerable to a takeover from the liberation movement as a result of the strong Palestinian influence within the Jordanian armed forces. The Governments of Syria and the United Arab Eepublic enjoy greater freedom of action, although within each government élite there is a faction strongly committed to the liberation cause that would be deeply alienated by any interference with the freedom of action of the guerrilla group. The same comment also seems true for Lebanon. In all Arab countries the liberation movement seems popular with the masses, and governmental regulation or suppression would be regarded as a very unpopular policy.

32 For a profound inquiry into these problems, see McDougal, Myres s. and Feliciano, Florentino P., Law and Minimum World Public Order 97-260 (New Haven: Yale University Press, 1961)Google Scholar. Cf. also the French explanation of their refusal to supply arms to Israel, initially as a consequence of Israel's initiation of force in June, 1967, and recently in reaction to Israel's action at the Beirut Airport. New York Times, Jan. 8, 1969, pp. 1, 19.

33 This .assertion rests on several considerations: (1) the inability of the XJ.N. to implement its decisions; (2) the political factors that act to shape such a decision. The problems of control are particularly severe in the Middle East because of the rivalry between the United States and the Soviet Union for influence within the region.

34 Cf. speculation to this effect as part of the Israeli reaction to censure by the Security Council and imposition of an arms embargo by Trance, New York Times, Jan. 12, 1969, pp. 1, 9. A state such as Israel might also seek to avoid inter-regional trade-offs at her expense if the settlement bargain is achieved by super-Power consensus (e.g., in simplistic terms, the Soviet position on Middle Eastern problems is accepted in exchange for Soviet acceptance of the U. S. position on South Asian problems).

35 Ian Brownlie, International Law and the Use of Force by States 281 (and sources cited therein) (Oxford University Press, 1963). Brownlie's statement is supported with additional citations and discussions in E. Higgins, The Development of International Law Through the Political Organs of the United Nations 217-218 (Oxford University Press, 1963). For general background, see Colbert, Evelyn Speyer, Betaliation in International Law (New York: King's Crown Press, 1948)Google Scholar.

36 But for more flexible views of what is permitted under the Charter in the name of self-defense, see McDougal and Feliciano, cited note 32, pp. 1-260; see also pp. 679-689; Stone, Julius, Aggression and World Order (Berkeley: University of California Press, 1958)Google Scholar; Bowett, D. W., Self-Defense in International Law (New York: Praeger, 1958).Google Scholar

37 S/RES/188 (1964). The next clause of the resolution “deplores the British military action at Harib on 28 March 1964.” And the Charter basis of the condemnation is suggested by language in the preambular section “Recalling Article 2, paragraphs 3 and 4 of the Charter of the United Nations.'’ The Security Council resolution here, unlike the one condemning Israel for the Beirut raid, does widen the context and establish some kind of reciprocal obligation on the part of Yemen. For instance, the fourth operative paragraph “Calls upon the Yemen Arab Republic and the United Kingdom to exercise the maximum restraint in order to avoid further incidents and to restore peace to the area.” And in the last paragraph, the Secretary General is called upon to use his “good offices to settle outstanding issues, in agreement with the two parties.” Thus, although the United Kingdom is censured, the sense of mutual responsibility is stressed in a way that it is not in the December 31 resolution. See also I. F. Stone, “International Law and the Tonkin Bay Incidents,” in Raskin, Marcus G. and Fall, Bernard B. (eds.), The Viet-Nam Reader (New York: Vintage, 1965).Google Scholar

38 See New York Times, Jan. 5, 1969, Sec. 4, p. 1; General Bar Lev said that “the large-scale operation” against the fedayeen bases of Karameh and Es-Salt in Jordan during 1968 “were not reprisals.” He went on to say that “these were actions intended to strike directly at the heart of the terrorists.” As an earlier example of a reprisal General Bar Lev cited the Israeli commando attack upon Egyptian bridges and upon a transformer station serving the Aswan Valley, the destruction taking place in the Nag Hamadi area. This reprisal was in retaliation for alleged Egyptian violations of the cease-fire along the Suez Canal. For a summary of the meetings of the Security Council devoted to this question on November 1 and 4, 1968, see 5 U.N. Monthly Chronicle 3-16 (November, 1968). Another prominent Israeli reprisal action occurred in October, 1967, after Egyptian rockets sank an Israeli destroyer, Mlath, leading to the death of most of the crew. Israel alleged that the Mlath, the largest ship in the Israeli Navy, was on ” a routine patrol” and sailing in international waters, more than twelve miles from the Egyptian shore. Egypt contended that the Mlath was only ten miles from shore and heading for Port Said in a “provocative” manner. The Mlath was sunk on October 21 and the Israelis retaliated three days later with a heavy artillery barrage directed at the City of Suez situated near the cease-fire line. One result of the barrage was to destroy or badly damage the two most important oil refineries in Egyptthat supplied 80 percent of the country's gasoline and cooking fuel. The Elath reprisal contrasts with the Beirut raid because the provocative action—sinking the ship—was clearly governmental in character. Hence, there was no issue as to whether Egypt was responsible, if in fact it was “illegal” to sink the Elath, itself a complicated issue of both fact and law. A resolution in the Security Council condemned both acts of violence as violations of the cease-fire and called for strict adherence by all governments in the future. Account of the Elath incident is based on Khouri, note 22 above, p. 279. The principal purpose of retaliatory uses of force by Israel is to influence decisionmaking by Arab governments, especially with respect to their encouragement of terroristic tactics on the part of liberation groups located on their territory. Mr. Tekoah ‘s conclusion of his final statement in the Security Council makes the centrality of this objective very clear. He says: “Israel's action in Beirut, taken in defense of its rights, should bring the Arab Governments to understand the full depth of Israel's determination to ensure its right to peace and security. When the Arab States realize that determination, become persuaded by its tenacity and draw the appropriate conclusions, there will be peace in the Middle East.” S/PV. 1462, p. 52. Arab spokesmen, in contrast, refused to treat the Beirut raid as raising any issue that was broader than the permissibility of such an attack by the Israeli Government, given the absence of any prior governmental act of provocation on the part of Lebanon. Both the Beirut and the Elath reprisal raids seemed to include an element of punitive action, a policy of inflicting losses on Arab governments that exceed those inflicted upon Israel by prior action.

39 As a technical matter, Charter law is properly accorded priority over inconsistent rules of customary international law. Therefore, the clear rejection of the right of reprisal in U.N. practice seems to establish the general authority of this conclusion in positive international law. However, the inability of the United Nations to impose its views of legal limitation upon states leads to a kind of second-order level of legal inquiry that is guided by the more permissive attitudes toward the use of force to uphold national interests that is contained in customary international law. This point has considerable jurisprudential importance, as it suggests the usefulness of a method of suecessive legal approximations. If the Charter status of reprisals exhausted legal inquiry, thon there would be no prospect of moderating force in retaliatory settings wherein the Charter approach was ineffectual. Specifically, in the Arab-Israeli setting it appears useful to maintain second-order levels of legal inquiry so as to retain criteria of reasonableness in a situation that threatens at many points to deteriorate into intense and limitless forms of violent conflict. The customary international law of reprisal is a very important illustration of such second-order legality. Note, especially, that this kind of inquiry is associated with the contention of Israel that the purpose of a reprisal is not to inflict a punishment, but to communicate a claim with respect to future behavior. Even second-order legal inquiry may be ill-adapted to the kind of retaliatory claim being made by Israel, see above, Sec. II, and a third-order legal inquiry involving the specification of considerations bearing on the relative legal status of a particular retaliatory claim, see below, Sec. IV.

40 A useful short discussion of the background and character of the right of reprisal is given by Glahn, Gerhard von (ed.), Law Among Nations 498-501 (New York: Macmillan, 1965).Google Scholar

41 Many international documents that formulate governmental duties of conduct include the responsibility to prevent the use of territory as a base for liberation activities against a foreign state. For example, the Declaration on Inadmissibility of Intervention, Resolution 2131 (XX) of the General Assembly, Dec. 21, 1965 (see note 28), declares that “no State shall … tolerate subversive, terrorist, or armed activities.” See also citations in note 69 below, especially Garcia-Mora and Lauterpacht.

42 Note fiat Israeli representatives in the Security Council indicated that Arab countries other than Lebanon were also intended as targets of the Beirut raid. All Arab aircraft were destroyed, and not only those associated with Lebanese interests. Also the context was defined by Israel to include (1) the Athens incident, (2) the diversion of an El Al plane to Algiers in July, 1968, and (3) the over-all Arab policy of supporting the activities on their territory of the liberation groups. As Mr. Eosenne suggested to the Security Council: “Without in any way belittling the gravity of this terrorist warfare being conducted against Israel's civil aircraft, wherever they might be, the complaint that we are discussing must also be seen in the broader context of the continuationby the Arab States, including Lebanon, of active belligerency and warfare against Israel through the instrumentality of irregular forces and organizations armed, -trained and financed by the Arab Governments, including the Government of Lebanon.” S/PV. 1460, pp. 24-25.

43 On the comparatively low level of Lebanese hostility toward Israel, see Khouri, cited note 22, pp. 191, 230-231; Safran, cited note 9, pp. 182-185, 245-247. On its more recent increase, however, see ‘ ‘ The Israeli Action at the Beirut Airport,'’ Israeli Information Office, undated release, and the statement by Prime Minister Eshkol in Jerusalem on December 29, 1968, bearing the title, “Lebanon Cannot Disclaim Responsibility for Terrorism.''

44 The Arab governments, but even more pointedly the Soviet Union, took the position that the Athens incident was a matter for Greek internal criminal law, and of no relevance at all to the debate on the Beirut raid. As Mr. Ghorra of Lebanon said, ” I n our view, that incident which took place at the Athens airport is a matter of common law, and the Greek courts have sole jurisdiction in the matter.” S/PV. 1460, p. 61. Mr. Malik of the Soviet Union put his view as to the territorial, non-governmental character of the Athens incident very forcefully:’ ‘ This incident, which took place in Athens, relates to the sovereignty and competence of Greek authorities; it occurred on Greek territory. According to the press reports, the competent authorities of that country are dealing with this matter; they are studying it, and apparently they have taken some measures. They have executive as well as judiciary authorities there. How is this matter at all related to the Security Council! As I have already pointed out in my observations following the adoption of the agenda, if the Security Council were to begin to consider all the terrorist acts which are being perpetrated, no matter where, including even this country [the United States], then the Security Council would simply cease to be a Security Council… . The representative of Israel is dragging the Security Council into the consideration of events which took place on the territory of a sovereign power which is certainly entitled to deal with this matter … and that country has not appealed to the Security Council.” 8/PV. 1460, p. 13. And later on the last day of the debate Mr. Malik reiterated his position in more succinct form: ” I t must be stressed that the attack against the Israeli airplane was indeed carried out by citizens of a third State on the territory of yet another State; and, in accordance with international law, a State can be held responsible only for acts of its own organs, such as its armed forces or its citizens, on the territory of that given S t a t e . ” S/PV. 1462, p. 22. Mr. Wiggins, the representative of the United States, did take the position that ’ ‘ Israel was rightly aroused and legitimately concerned about the attack upon an Israeli aircraft in Athens on 26 December” but, nevertheless, he concluded that “[N]othing that we have heard has convinced us that the Government of Lebanon is responsible for the occurrence in Athens.” S/PV. 1460, pp. 28-30.

45 M r . Bosenne did tell the Security Council that ” [ A ] l l through 1968 Lebanon, turning a deaf ear to Israel's appeals has been playing an ever increasing role in the overall Arab belligerency against I s r a e l . ” S/PV. 1460, p. 21. There is no indication of any specific Israeli effort to persuade the Lebanese Government to exercise stronger controlover the Popular Front in view of the Athens incident. Israel ‘a justifications for focusing the attack upon Lebanon rested on allegations involving (1) the departure of the Arab perpetrators from Beirut; (2) the Lebanese toleration of increasing activity by the Popular Front on its territory; and (3) official and semi-official Lebanese endorsement of the use of terroristic methods by the perpetrators of the Athens incident.

46 Mr. Wiggins, the United States representative in the Security Council, made this point forcefully when he said that the Beirut raid was ” a n unacceptable form of international beTiavior. In magnitude it is entirely disproportionate to the act that preceded it. It is disproportionate in two ways: first, on the degree of destruction involved; and secondly, in a more fundamental way, in the difference between the aets of two individual terrorists and those of a sizable military force operating openly and directly under governmental orders.” S/PV. 1460, pp. 28-30.

47 The visibility of the two occurrences can be gauged by comparing their treatment in newspapers around the world. The Athens incident was reported as a relatively minor terroristic act, whereas the Beirut raid received headlines and the damage done was shown in large photographs.

48 There are underlying the specific allegations of terror and counter-terror the more general allegations about bringing the conflict to an end either by “disintegrating” Israel and replacing it with the secular state of Palestine or by carrying out the provisions of Security Council Resolution 242 of Nov. 22, 1967, or by working out an agreed solution through the good offices of Gunnar V. Jarring, the special representative of the Secretary General, or by accepting a solution for the area that is worked out by guarantor Powers such as the United States, the Soviet Union, France, and the United Kingdom.

49 As pointed out already, Israel, in particular, objected throughout to the effort to restrict the scope of inquiry to the Beirut raid. See note 8.

50 The problem is fully depicted from an Israeli viewpoint in an article: Amnon Bubinstein, ” ‘Damn Everybody’ Sums up the Angry Mood of Israel,” New York Times Magazine, Feb. 9, 1969, pp. 24-27, 93, 96-99. See especially p. 98, on which there is a discussion of why Israel does not engage in counter-terror against Arab interests by organizing irregular military forces of its own, thereby cutting the overt link between retaliation and the Israeli Government. A senior officer is quoted as saying ” ‘ [t]error for terror is the only solution,’ ” but Mr. Bubinstein writes, “This solution is unacceptable in the Israeli Government.” He advances three arguments: (1) “The whole philosophy” of Israeli resistance “runs contrary to any suggestion of counterterror.” (2) Becourse to irregular forces would weaken Israel's contention that Arab incitement of irregular forces is a violation of the cease-fire agreement reached at the end of the June war; this reasoning is attributed to Moshe Dayan. (3) Regular troops can be militarily protected in the course of their mission in a way that irregular forces cannot; this view is attributed to General Bar Lev.

51 For somewhat similar suggestions in different circumstances of conflict, see Philip C. Jessup, “Should International Law Recognize an Intermediate Status between Peace and War?” 48 A.J.I.L. 98 (1954); McDougal, Myres S. and Feliciano, Plorentino P., Law and Minimum World Public Order 97-120 (New Haven: Tale University Press, 1962).Google Scholar

52 The duty of respect arises from the obligation of a Member of the United Nations to accord respect to acts of the Security Council when that organ is acting, as it was here, within its sphere of competence. As the Council was acting under Chapter VI, not VII, its resolution was formally a “recommendation” rather than a “decision.” On this point see further discussion in note 59 below.

53 There were extended discussions of the legal consequences of the Beirut raid in the I.C.A.O. These discussions resulted from a Lebanese complaint that the Israeli action was a violation of the Chicago Convention on Air Transport and that Israel should be condemned and made to pay for the damage done. Although questions about the competence of I.C.A.O. to deal with a complaint of this character dominated the debate, the issues were discussed generally in a manner more favorable to the Israeli position than was the case in the Security Council. The outcome of these discussions was a decision sine die, which is quite a contrast with the result within the U.N. forum.

54 An interview published in Time, Jan. 10, 1969, p. 28.

55 In violation of the Nov. 22, 1967, resolution of the Security Council and of the stated objectives of all states other than Israel, there does not seem to be any serious disposition by the Israeli Government to re-establish the status quo ante June 5, 1967. In particular, the retention of administrative control over Jerusalem, of the GolanHeights, a strip of Sinai needed to assure control over the Straits of Tiran, and of a portion of the West Bank of the Jordan and of the Gaza Strip seems to be insisted upon by Israel. There is, then, on the Arab side an unwillingness to accept the existence of the state of Israel and on the Israeli side an insistence upon expansion through conquest. For an assessment of Israel's intention to retain conquered Arab lands, see interview with Levi Eshkol published in Newsweek, Feb. 17, 1969, pp. 49-56; see also analysis of these claims by James Feron, ‘ ‘ Eshkol Mentions the Unmentionable,'’ New York Times, Feb. 16, 1969, Sec. 4, p. 2. Israel's claims are a mixture of security demands of a defensive nature and of territorial demands of an expansionist nature.

56 The position of Israel before the political organs of the United Nations is coming to resemble that of South Africa in certain critical respects, especially with regard to the degree of its diplomatic isolation. Israel does continue to enjoy some diplomatic support from the United States and from some countries in Western Europe, but, since the end of the 1967 war, even these governments have grown increasingly critical of Israel's expanding demands and exercise of prerogatives.

57 E.g., Julius Stone, “No Peace—No War in the Middle East” (Sydney, Maitland, 1969), especially pp. 4-5. Professor Stone writes on p. 4: “Everyone knows that too many present Security Council Members are committed to voting on the Arab side, for pro-Israel resolutions to be adopted, no less than five of these Members refusing even to maintain diplomatic relations with her.“

58 Abba S. Eban, Foreign Minister of Israel, suggested that anti-Jewish discrimination is embodied in the recent diplomatic attacks upon Israel: ” I have no other explanation for the fact that the Soviet Union, which invaded Czechoslovakia, can condemn alleged Israeli ‘aggression’ at the UN without the public gallery bursting into laughter.” Interview, Time, January 10, 1969, p. 28.

59 There is a certain legal ambiguity created by the status of various actions taken by the Security Council. In a formal sense, the judgments of the Security Council have the status of “recommendations” unless they are made under Chapter VII of the Charter. Except for “decisions” relating to the observation of the cease-fire, the Security Council has relied upon its “recommendatory” powers under Chapter VI. The resolution censuring Israel after the Beirut raid was a “recommendation.” As such, it cm be argued that Israel has no formal obligation to obey it. On the other hand, a resolution of censure involves an authoritative act of community review that constitutes Kfrong evidence as to the respective rights and duties of parties to an international controversy.

60 Countries that have been the targets of TJ.N. directives have almost invariably refused to comply. In fact, when an international conflict gets to the point where the TJ.N. takes sides, it is almost assured that “the losing side” will not voluntarily obey the will of the Organization.

61 That is, in strategic parlance, the objective is one of deterrence rather than defense. The primary effort is to influence decision-making in the target state's government rather than to diminish its capabilities for action. The Beirut raid aimed at shaping the policies of Arab governments with respect, in particular, to terroristic activities directed at the operations of El Al Airlines by liberation movements based within their territory. There was no intention to deprive Arab countries of commercial aircraft, which were obviously replaceable at relatively little cost.

62 Ambassador Tekoah's statements to the Security Council confirm the conclusion that the Israeli Government sought, above all else, to induce Arab governments to prohibit liberation movements operating within their territory from interfering with El Al flights.

63 Cf. New York Times, January 12, 1969, pp. 1, 9; see, especially, article by Rubinstein cited in note 50 above. However, the Israeli response to the Zurich incident (see above, pp. 419-420) casts some doubt on the generality of the statement in the text.

64 The objective factors are those that can be formulated in general terms, whereas the subjective factors are those that involve the perceptual framework of the participants in the situation and are subject to wide variation depending on personality, cultural, and ideological considerations.

65 This tendency would be strengthened if the claimant state executed its operation in such a way as to minimize the injury to innocent civilians and third-party interests. The United States claiming pattern in the Cuban missile crisis is a model for this contention. A novel claim by the United States to use force on the high seas was made to appear so reasonable in assertion and execution that critical reaction, even though the Soviet Union was the target of the claim, was kept to a minimum. For two legal arguments by government officials in support of the United States claim, see Leonard C. Meeker, “Defensive Quarantine and the Law,” 57 A.J.I.L. 515 (1963); Abram Chayes, “The Legal Case for U.S. Action on Cuba,” 47 Dept. of State Bulletin 763 (1962).

66 1 have elsewhere analyzed the reactions of African countries to the so-called Stanleyville operation of December, 1964, in these terms. Falk, Legal Order in a Violent World 324-335 (Princeton University Press, 1968).

67 There are certain other factors that explain censure from third-party sources: (1) prior uses by Israel of excessive force in response to terroristic provocation; (2) the selection of Lebanon as the target of retaliation, given the long period of non-involvement by the Lebanese Goverment in the Arab-Israeli conflict; (3) the growing realization that Israel was insisting upon retaining some of the territorial fruits of the 1907 war; (4) the timing of the Beirut raid seemed to be damaging prospects for either a Great Power or U.N. initiative to bring some measure of stability, if not real peace, to the Middle East.

68 A subsequent article will attempt to evolve a suitable framework for the assessment of acts of violence relied upon by liberation groups to achieve their political ends. Such a framework would involve, necessarily, some assessment of the compatibility between the aims of these groups and appraisal of these aims by regional and global institutions and their conformity with norms of international law. In addition, the choice of means used to pursue such aims requires an innovative legal analysis that reconsiders paramilitary violence as an instrument of political change. Eventually the two frameworks of legal appraisal will need to be integrated into a single coherent approach to the relevance of international law to this species of international conflict that has assumed such great importance in world affairs.

69 For some relevant legal background see Grob, Fritz, The Eelativity of War and Peace (New Haven: Yale University Press, 1949);Google Scholar Hindmarsh, Albert E., Force in Peace: Force Short of War in International Eelations (Cambridge: Harvard University Press, 1933);Google Scholar Garcia-Mora, M. E., International Responsibility for Hostile Acts of Private Persons against Foreign States (The Hague: Nijhoff, 1962);Google Scholar Hersch Lauterpacht, “Eevolutionary Activities by Private Persons against Foreign States,” 22 A.J.I.L. 105, 130 (1928). For some specification of support given terroristic groups in Egypt and Jordan since the June war, see Stone, note 57 above, pp. 4-6. According to Israeli sources there have been 1,288 acts of sabotage and border incidents between June 6, 1967, and December 31, 1968. 920 of these acts occurred in the Jordaninn- Israeli sector, 166 in the Egyptian sector, 37 in the Syrian, 35 in the Lebanese, and 3 30 in the Gaza Strip sectors. Israeli losses have been put a t 234 soldiers and 47 civilians killed and 765 soldiers and 330 civilians wounded. Arab losses are reported by Israel as considerably greater than these figures. See New York Times, Feb. 13, 1969, pp. 1, 4. There are indications of a rising Israeli concern about the growing capacity of the guerrilla groups to impair Israel's security, including especially the character of its administration of occupied territories inhabited largely by Arabs. See James Feron, ” I s r a e l Concerned over Guerrillas,” ibid., March 9, 1969, Sec. 1, p. 12.

70 Israeli statements before the Security Council emphasized the effort to carry out the Beirut raid without inflicting casualties upon Lebanese citizens. See, e.g., S/PV. 1460, p. 23. And in the official release of the Israeli Information Office in New York, the following language appears: “At great risk to themselves, Israeli troops at the Airport exercised the strictest precautions to prevent civilian casualties. The planes were emptied of passengers and ground crews, and people in the vicinity were led away to safety. Loudspeakers were employed to issue instructions in Arabic and English. The only shots fired were warning shots in the air.” Eelease dated Dec. 28, 1968.

71 Israeli attacks against Arab para-military bases associated with guerrilla activities have occasioned little adverse reaction, especially if “provoked” by an upsurge in miscellaneous incidents of terrorism within Israel. See paragraphs on the air strike against Syrian bases of Al Fatah on Feb. 24, 1969, above, p. 420. To some extent the governmental character of a retaliation against non-governmental provocation is neutralized if the targets are military. This is especially true if the victims of the terrorism were civilians and damage done to non-military targets. The choice of a non-military target for Israeli retaliation after the Athens incident seems to be a very significant element in explaining the strong adverse international reaction to the Beirut raid.

72 Cf. analysis of Safran, cited note 22 above, at pp. xii-xv, 21-142, in terms of the levels: (1) Arab-Israeli; (2) inter-Arab; (3) XT.S.-IT.S.8.R. j.

73 The significance of this rô1e, it should be noted, depends on a conception of inter- I national law that is wider than one concerned with rules of behavior. Neither the i Charter norms nor the norms of customary international law delimiting the right of j reprisal, come to grips with the kind of choice that confronts a government that needs to design responses to persistent terrorism directed at the security of its national territory. In such circumstances, the exigencies of response cannot be cast aside by the invocationof legal rules. At the same time, retaliatory claims can be asserted in accordance with a framework of restraint that is designed to minimize disruption, to maximize the clarity of the message conveyed, and to solicit the sympathy of the organized world community.

74 Cp. problems associated with the effort by the United States to extend its antitrust regulation to govern the foreign operations of business firms that have an anti-competitive impact on the U.S. economy.