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Tuesday, August 01, 2006

Chibli Mallat,"The Hezbollah-Israel War: Narratives and 'Legal Truth,'" Jurist, July 28, 2006

JURIST Guest Columnist and Lebanese presidential candidate Chibli Mallat, professor of law and holder of theEU Jean Monnet Chair at St. Joseph's University in Beirut, says that the historical narratives of the sides in the long-running Arab-Israeli conflict currently manifested in Lebanon stand to be reshaped by a legal order imposed by the UN Security Council, whatever that may turn out to be...

People familiar with the Arab-Israeli conflict know that one characteristic staple of the longest running conflict in modern history is its 'narrative'. Each side has its own narrative, which is profoundly different from the other's. Speaking from different departing points, language goes off on tangential parallels that do not meet, and reinforce a dialogue of the deaf. This is particularly true of the legal narrative, as underlined in a seminal article by leading Palestinian lawyer Raja Shehadeh in the early 1990s, at a time when the Israeli and Palestinian leaderships were still seriously negotiating a solution to the conflict.

In the recent outbreak of large-scale violence, the common terrain of the two narratives is even less available. The Hezbollah leader developed two main legal arguments in his first speech upon the abduction of two Israeli soldiers on July 12 after his militia crossed the UN-established Blue Line separating Lebanon from Israel: the first related to the abduction itself, which he compared with the protracted imprisonment of Lebanese nationals in Israeli jails. The second was a larger issue: told that morning by the UNSG representative in Lebanon that the abduction was a serious violation of the Blue Line as established and confirmed in 2000 by the Security Council, he advocated a 'natural rights' argument instead. Conversely, the Prime Minister of Israel flagged counter-terrorism and self-defense under Art.51 of the UN Charter as the legal rationale for massive Israeli retaliation, adding also, in the first day, the full responsibility of the Lebanese government for Hezbollah's action.

The different narratives have an even more difficult component: the further the protagonists go back in time, the larger the gulf. On the Palestinian-Arab-Islamic side, the fight is respectively over displacement of the Palestinians, occupation of Arab land, and the survival of Islam as a civilization threatened by the West by way of Israel. On the Israeli side, it is a right of self-determination over Biblically-defined land for the Jewish people, and the right for Jews to live within safe and recognized borders. Not surprisingly, the two narratives, which are coherent enough in and by themselves, talk in the main past each other. Even a common ground like 'proportionality' or 'the use of prohibited weapons' gets disputed ad nauseam, and both parties and supporters advance different facts and different sequencing to accuse the other and defend themselves from any wrongdoing under international law.

I am not a nihilist, and do not think that the competing narratives prevent the truth from prevailing. There are two levels for this necessarily relative truth, since it is human, to come out. One takes place in public discourse, informed by legal expertise and occasionally fact-finding missions. I have for instance advocated from the very first day that Hezbollah was wrong in crossing the Blue Line, both from the point of view of international law and from a domestic Lebanese perspective. The first argument is simple: had Israel crossed the Blue Line and its soldiers been killed or abducted in Lebanon, the situation would be exactly opposite. The fact of the crossing is not denied, so there is no room for the narrative to be in dispute on that score. The domestic argument is also straightforward: how can a non-state party carry out violence, even against an acknowledged enemy, outside the permission and control of the national government ?

There are more controversial arguments. One is the Shebaa farms, a territory which is in dispute since the Lebanese government expressed its reservations over its delineation south of the Blue Line. Against the grain of Lebanese nationalist sentiment upon Israeli withdrawal from Lebanon in May 2000, I always considered the Shebaa farm to be Syrian territory under international law, and continue to fault the Lebanese leaders, including the Prime Minister, for flagging it out in a way that ensnared Lebanon in the Syrian narrative and its use of its Lebanese supporters to prevent a lasting peace on the Lebanese-Israeli border. The narrative here is less clear cut, however, and one has seen maps produced (some apparently 'doctored'), as well as dozens of land titles flagged to defend the Lebanese entitlement to the Shebaa farms. On facts, and they are important as disputes over borders often depend on indicia of ownership when the border has not been fully demarcated, the main reason why the farms are not Lebanese is because they are prima facie Syrian owing to their coming under UN writ since 1974. That region is in the area patrolled by UNDOF troops, which were stationed on the Syrian Golan in the wake of the Syria-Israel war of 1973, as opposed to UNIFIL, which was deployed on the Lebanese border (but not in the Shebaa area) since the Israelis moved to occupy Lebanon in 1978.

Examples can be multiplied, and get complicated over time. Conflicting narratives develop accordingly, and public discourse, or the general agreement of scholars, eventually define which narrative tends to prevail. Historical truth slowly takes its path with general indecisiveness. But another truth, at least as important, develops on the practical legal front by way of the Security Council. Mostly since the end of the Cold War, the Security Council has become the most powerful law-making and law-deciding power – and here it is a power, in the same way as a court represents judicial power – in the international arena. The battle over the Hezbollah-Lebanon war is presently waged over the next Security Council Resolution, which can be followed in the proposals and counterproposals tabled at various levels across the globe. Once the Security Council has decided over the order of priorities, and the formulation of its own narrative, it becomes law. For instance, will the 12 July abduction of the two Israeli soldiers be considered by the Council as an infringement of international law, and how will that formulation be carried out. Will the regional conflict be mentioned, or will the Council restrict its Resolution to Lebanon-Israel ?

With this dual grid, the stakes appear more clearly in the Lebanese-Israeli crisis. Public discourse shapes law against conflicting and usually indecisive historical narratives. The Security Council eventually puts some order by producing a legal truth of sorts, as implementation is yet another story.

Chibli Mallat is a Lebanese presidential candidate and EU Jean Monnet Professor of Law at Saint Joseph's University in Beirut.

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