When can Israel use an offensive weapon in the territory of a country at peace with it?
By YONAH JEREMY BOBIron Dome and soldier 370(photo credit: Reuters)
There have been contradictory reports about who recently attacked a terrorist rocket crew in Egyptian territory on its way to launch rockets at Israel, but at least one narrative was that an IDF drone preemptively struck the crew, preventing it from firing.The legal dilemma is: When can Israel use an offensive weapon, like a drone, in another country’s territory, such as Egypt, particularly where that country has a peace agreement with Israel and has been given credit by Israel for trying to restrain terrorist activity emanating from its territory? Politically, using a drone seems much less offensive to Egyptian sovereignty and carries a smaller “foot print” than sending Israeli troops across the border in hot pursuit.But legally, the dilemma of when Egyptian sovereignty could be violated on a self-defense justification is the same.In addition, now that Iron Dome is not an untested new invention, but has a tested track record of success, the question might be asked whether Israel has an obligation to use the defensive Iron Dome to shoot down an offensive rocket in Israeli territory as opposed to entering Egyptian territory with an offensive-minded drone? The views on the use of drone attacks, mainly by the US, have varied widely in recent years.The US has and is using drones in Yemen to target terror operatives with Yemen’s explicit permission, eliminating the sovereignty problem (Iraq reportedly is considering doing the same). Until June, the US reportedly had an unspoken approval from Pakistan for targeting terror operatives there, though it is unclear what the US will do now that the new Pakistani prime minister opposes the strikes. Afghanistan has also sent mixed messages on this issue.Besides the sovereignty issue, most of the US attacks have faced criticism for collateral damage to civilians, as many attacks take place in an urban environment.In the Egyptian scenario, collateral damage is likely off the table as it deals mainly with hitting a terror crew near the border, clearly isolated from any urban environment.At least two experts were highly circumspect about using drones against rocket crews in Egyptian territory.Alan Baker, former head of the Foreign Ministry’s legal division, said that as an initial matter any “threat of a rocket attack on Israel from whatever direction, if” satisfying the definitions either of an “armed attack” or “an immediate, overwhelming and serious threat,” could “invoke Israel’s right to defend itself.”However, Baker added, “Clearly, in light of the sensitivities with Egypt and our peace treaty commitments to respect her sovereignty, we have to be very careful and not do anything to violate that sovereignty.”
Baker continued, “Hence one may presume that any drone attack from our side could only be at the request, behest or with the consent of Egypt’s ruling elements” and “probably the Americans.”Hebrew University Law School Dean Yuval Shany expressed similar sentiments, stating that although, “if Egypt approved a drone attack, there is no problem,” it could be very “sensitive” if Israel carried out a drone attack “without permission from Egypt,” particularly if intelligence made obvious that the hostile rocket would “just land in a field.”On the other hand, if a city like Tel Aviv was in danger, while offering case-specific qualifications, both said that they thought the law of armed conflict would permit a preemptive drone strike even without Egyptian approval.Still Baker thought such a scenario was highly unlikely stemming from Egyptian territory (as opposed to from Gaza or Lebanon where a whole different set of rules could apply, especially in a general state of armed conflict).He said that absent such a “worst case scenario,” it would be preferable for Israel to use Iron Dome as a defensive measure for bringing down the rocket.Shany also said that there were those who disagreed with him and would oppose any preemptive drone use in another’s territory to stop one rocket, absent a massive “armed attack” or the expected use of nonconventional weapons, and that the question was “not clear-cut.”He agreed that unless there was no other option, Israel “must look at its alternatives” like Iron Dome first, “if it can neutralize the threat defensively.”It is uncertain whether Israel employed a drone attack, but now that it has both Iron Dome and drone options, the legal issues may only get more complicated and become more dependent on how specific Israel’s intelligence is.
