Lawfare Update: Can Israel Defend Its Borders?

by David French

In a previous post, I defined lawfare as a form of asymmetric warfare that abuses domestic and international legal norms to accomplish tactical and strategic goals that can’t be won on the battlefield. Today brings news of the latest example, a U.N. report accusing Israel of violating U.N. resolutions when it responded with deadly force when demonstrators attempted to breach its border fence in May.

This critique rests on an utterly novel reinterpretation of international law. To recap, Israel remains in the midst of a multi-decade face-off against states (and terrorist entities) that refuse to recognize its borders and indeed its very right to exist. Despite decades of military conflict and multiple shooting wars, Israel has not been dislodged, and there is zero indication that Syria, Lebanon, Hezbollah, or any organized entity in the Middle East possesses the raw military power to move Israel from its current borders. Further, under international law, a sovereign nation has the ability to use armed force to defend its borders against incursions from belligerent states and belligerent entities.

On May 15, 2011, thousands of protesters — acting with the consent and cooperation of forces hostile to Israel — stormed Israel’s border fence. A large number of those protesters engaged in violent acts, including throwing stones, “petrol bombs,” and attempting to physically tear down the fence itself. Israel issued verbal warnings, fired warning shots, and then — finally — used deadly force. Could Israel have accomplished the same goals with different tactics (such as tear gas or other riot control mechanisms)? Perhaps. Was Israel required to use such tactics to defend its border? Absolutely not.

Indeed, international mandates requiring the use of nonlethal force do nothing more than encourage further incursions and diminish Israel’s ability to defend its borders. But that of course is the core goal of lawfare — to win for Hezbollah a victory in New York that it could never win in Israel.

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