Web Only / Features » December 25, 2012
An Open Letter to Professor Noam Chomsky
What ‘Gaza Under Assault’ got wrong.
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. "
Dear Professor Chomsky,
Living in Israel, I regularly read the news and opinions on the Israeli-Arab conflict. I’ve encountered your articles on several occasions and like you, I am critical of many of the Israeli government’s actions. So I read with interest your recent article, “Gaza Under Assault,” published Dec. 2 on InTheseTimes.com. For the purpose of full disclosure, I should state that I don't always see eye to eye with you on the Israeli-Palestinian conflict; nonetheless, I have always respected your opinions.
I was stunned, therefore, to see that your article contains at least one serious fallacy. Professor Chomsky, it goes without saying that you are considered one of the world's foremost linguists, philosophers and political thinkers. So you can imagine my surprise upon reading “Gaza Under Assault” and discovering a major error. You wrote:
But even decent people ask what Israel should do when attacked by a barrage of missiles. It's a fair question, and there are straightforward answers. One response would be to observe international law, which allows the use of force without Security Council authorization in exactly one case: in self-defense after informing the Security Council of an armed attack, until the Council acts, in accord with the U.N. Charter, Article 51.
This statement is simply wrong. As everyone familiar with international law knows, a state has a right to invoke Article 51 of the UN Charter and act in self-defense as soon as an armed attack occurs. Article 51 reads:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council.
In other words, a state must in due time notify the Security Council of its actions in self-defense, but under no circumstances is the state required to wait for an authorization from the Security Council in order to act.
Moreover, you suggest that there is only “one case” in which international law allows the use of force without Security Council authorization; in fact, there are others. Certainly, under peacetime law, self-defense is the primary exception. However, the use of force can also be authorized in peacetime by the UN General Assembly in exceptional cases in which it is deemed necessary “to maintain or restore international peace and security” and the Security Council is unable to act. This was the case in the Korean War of the early 1950s, where use of force was authorized under UN General Assembly Resolution 377 (“Uniting for Peace”).
More recently, it has been speculated that the use of force against another country without Security Council authorization is also legitimate in situations where there is serious concern that a humanitarian disaster is impending and the host state is unable or unwilling to guarantee its citizens’ protections. This doctrine, sometimes referred to as Responsibility to Protect, or R2P, has received considerable support in both academic and practitioners’ circles, including from the UN Secretary General. This doctrine was invoked by states as the basis for action in Kosovo (1999), for example.
Of course, neither UN General Assembly Resolution 377 nor R2P would be likely to be triggered in the case of Israel’s Operation Pillar of Defense, the subject of your essay—but the existence of further options calls into question your claim that unauthorized force can be used in “exactly one case.”
There is however, a broader error in your statement. International law recognizes two different frameworks of law: jus ad bellum, which determines the legality of the use of force during peacetime situations; and jus in bello, which determines the use of force during wartime. The situation between Israel and Hamas was already one of armed conflict and thus governed by the jus in bello. Under this legal framework, the parties’ right to use force is already presumed and is not limited to self-defense. Article 51, being a peacetime law, was not applicable to begin with.
Therefore, Israel held the discretion to use force against Hamas to achieve its military goals. Indeed, one of the foundations of the laws of war is that in situations of armed conflict, states may use whatever military force is deemed necessary (but not illegal) to achieve their military aims—a principle confirmed by the jurisprudence of international tribunals.
Professor Chomsky, I understand that you are not an expert in international law. However, I would have expected a man of such intellectual prestige to have at least responsibly researched and understood the principles and norms he refers to with such confidence. That is what I consider the very basis of intellectual honesty and journalistic rigor. After seeing that you so casually appeal to norms and concepts you are not familiar with, how can I trust any of your opinions?
Your error is made more serious by the international acclaim you enjoy, which imbues your words and actions with considerable weight. It is not uncommon for readers to trust your opinions blindly and to share your arguments widely. It is for these very reasons that you, and others of your prestige, hold a very high social responsibility and should be as rigorous as possible in your work. You enjoy the advantages of a considerable benefit of doubt, and in this latest article, you have put that credibility into question.
The grave legal fallacy leads me to suspect that you make no sincere effort to objectivity in your engagement with your subject—in this case, the Israeli-Palestinian conflict. I have the impression that you opine with extreme lightness and without scruple.
The damage having been done, you owe it to those of us who would look to your opinion with authority to retract the error. We are all accountable for our words and our actions. This axiom is no truer for Israel than for you.
* The author would like to thank Adam HJ Broza for his contribution.
Bianca Ambrosio is a graduate in International Relations and International Law. She is a freelance writer and a keen international law advocate.