http://www.nysun.com/pf.php?id=37392
August 7, 2006 Edition > Section: Opinion > Printer-Friendly Version
Naked Aggression
BY EUGENE KONTOROVICH
August 7, 2006
URL: http://www.nysun.com/article/37392
The most surprising aspect of international proposals for a ceasefire in the Israel-Lebanon conflict is their endorsement of Hezbollah's demand that Israel give it territory, known as the Sheba Farms, in exchange for a end to rocket attacks on Israeli cities. The merits of the proposal as a diplomatic measure are far from clear. What is certain — and yet entirely neglected in the discussion of the issue — is that the proposal violates bedrock norms of international law.
Nations cannot enlarge their borders through the use of aggressive force. There are no exceptions to this non-acquisition principle. The U.N. Security Council, the International Court of Justice, and America itself have consistently affirmed it. In the words of the General Assembly, "no territorial acquisition resulting from the threat or use of force shall be recognized as legal." Moreover, nations are forbidden from recognizing borders secured through illegal war.
The prohibition on acquiring territory through offensive war is a necessary corollary of the U.N. Charter's prohibition on the use of force except in cases of self-defense. Because self-defense is an "inherent right" under the U.N. Charter, many international law scholars maintain that territory taken in a defensive war can be kept — this further serves the goal of deterring aggression. Still, the norm against acquisition of territory through force is so strong that many claim it even applies to land taken in a defensive war.
No one in the international community believes Lebanon has a legitimate claim to the Sheba Farms, known to Israelis as Har Dov. It has never been within Lebanon's internationally recognized borders. It was under Syrian control until 1967, when Israel took it in the Six Day War. Israel entered southern Lebanon in 1982; when it withdrew in 2000, the Security Council certified that Israel no longer occupied a single inch of Lebanon. However, the Lebanese government and Hezbollah were not satisfied, raising what Secretary General Kofi Annan described as an entirely "new claim": that Sheba Farms was also Lebanese territory. After looking into the matter, Annan and the Security Council unanimously concluded that the area was not Lebanese and never had been.
Enlarging Lebanon's boundaries to encompass the Sheba Farms is one of Hezbollah's stated reasons for its abduction of Israeli soldiers and bombardment of Israeli cities. Thus if the conflict ends with Lebanon gaining the land, it will have been as the result of aggressive force. It will have succeed in doing what Saddam Hussein failed to do in Kuwait.
Secretary of State Rice reportedly endorsed Lebanese demands for a cease-fire to include a handover of the territory. However, the French-U.S. proposal in the Security Council disguises the territorial surrender under the innocuous-sounding "delineation of the international borders of Lebanon, especially in those areas where the border is disputed or uncertain, including in the Shebaa farms area." But the U.N. already certified Israel's withdraw from Lebanon in 2000, and dismissed Hezbollah's grounds for "disputing" the Sheba area. And while the "delineation"will be conducted by the U.N., the use of the the international body as a passthrough for Lebanon's territorial aggrandizement will fool know one. It is what the law calls a "straw-man transaction."
Because Lebanon has no rightful claim to the territory, if Hezbollah's violence succeeds in re-opening the U.N.'s earlier decision, it would be clear to all Hezbollah's rocket campaign was the necessary cause of the new, presumably more favorable "delineation." Hezbollah's side of the "dispute" over the border consists of attacking Israel. If this kind of disputation can get borders changed, it is a defeat for international law.
Some will argue that there should be no objection to Lebanon gaining the land through war because, if one does not think land can be acquired through legal defensive war, then Israel itself does not have valid title. But it is not clear anyone would want to stand by the far-reaching implications of this argument. For this position would also dictate that Israel can legally annex all of the West Bank, since it was taken from Jordan, which itself did not have legal title. Jordan seized the West Bank when it tried to destroy Israel in the 1948 War of Independence. The international community never recognized Jordanian sovereignty over the West Bank. So if the supporter's of Lebanon's claim are right — if the prior occupying power's lack of sovereign title is sufficient reason to permit the acquisition of territory through hostile war by another country — then this cements Israel's claim to the West Bank.
Hezbollah's contempt for international law shocks no one. What is unsettling is the U.S. and the U.N. lending their credibility to this gross assault on international norms which, if it succeeds, would be the first time in decades that a nation has successfully enlarged its internationally recognized borders through naked aggression.
Mr. Kontorovich teaches international law as an assistant professor at George Mason University School of Law, and currently as a visiting professor at the University of Chicago.
Eugene Kontorovich
kontorovich@hotmail.com
