Wednesday, November 08, 2023
Elder of Ziyon
(Disclaimer: This is a wonky legal post, and I'm not a lawyer. But, as always, I show my work. I'll correct any mistakes.)
ON ISRAEL's #SelfDefenseUnder Int'l Law Israel's actions in Gaza cannot qualify as self-defenseIn int'l law, Self-Defense is a term of art, with a narrower meaning than in common language.Under Article 51 of UN Charter, self-defense means :(1) legitimate use of force(2) by a state to protect itself against an attack(3) from another state.Under Article 51, use of force in self-defense is permissible solely to repel an armed attack by another State. Threats from armed groups from within occupied territory give state the RIGHT TO PROTECT ITSELF, but not to wage war against the state from which the armed group emanates.In line with established ICJ jurisprudence, in the case of the oPt: Israel cannot invoke the right to Self Defense under the UN Charter against threats emanating from the territory it occupies, and against the protected [Palestinian] population (ICJ, 2004).
Indeed, the ICJ ruled (in the advisory opinion on the defensive wall in Judea and Samaria) that Article 51 of the UN Charter doesn't apply because of the technical reason that the Article is only concerned with actions between two states.
But that doesn't mean Israel doesn't have the right to defend itself.
Firstly and most importantly, Israel does not occupy Gaza by any reasonable definition of the term. But even without Gaza being occupied, Albanese and many other antisemites argue that since Gaza is not a UN recognized state, Israel still has no right to self defense.
How bizarre!
It is fascinating that they invoke the non-state status of "Palestine" when it suits their needs. Because by the same criterion, there is no occupation altogether, even in the West Bank, since occupation by definition (which is only defined in the Hague Conventions of 1907) is only of territory belonging to a "High Contracting Party" - meaning a state!
At any rate, while the ICJ decision says that the narrow definition of self defense does not apply to Israel in the West Bank, it states clearly in paragraph 141:
The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens.
The Israeli High Court also discussed the ICJ ruling and stated that it was not only problematic legally, but ultimately irrelevant:
Israel's duty to defend its citizens and residents, even if they are in the area, is anchored in internal Israeli law. The legality of the implementation of this duty is anchored in public international law, as discussed, in the provisions of regulation 43of The Hague Regulations. In The Beit Sourik Case, this Court did not anchor the military commander's authority to erect the separation fence upon the law of self defense. The Advisory Opinion of the International Court of Justice at the Hague determined that the authority to erect the fence is not to be based upon the law of self defense. The reason for this is that §51 of the Charter of the United Nations recognizes the natural right of self defense, when one state militarily attacks another state. Since Israel is not claiming that the source of the attack upon her is a foreign state, there is no application of this provision regarding the erection of the wall (paragraph 138 of the Advisory Opinion of the International Court of Justice at the Hague). Nor does the right of a state to self defense against international terrorism authorize Israel to employ the law of self defense against terrorism coming from the area, as such terrorism is not international, rather originates in territory controlled by Israel by belligerent occupation. This approach of the International Court of Justice at the Hague is not indubitable (many sources given - EoZ). It stirred criticism both from the dissenting judge, Judge Buergenthal (paragraph 6) and in the separate opinion of Judge Higgins (paragraphs 33 and 34). .... We find this approach of the International Court of Justice hard to come to terms with. It is not called for by the language of §51 of the Charter of the United Nations (see the difference between the English and French versions, S. Rosenne 291 General Course on Public International Law 149 (2001)). It is doubtful whether it fits the needs of democracy in its struggle against terrorism. From the point of view of a state's right to self defense, what difference does it make if a terrorist attack against it comes from another country or from territory external to it which is under belligerent occupation? And what shall be the status of international terrorism which penetrates into territory under belligerent occupation, while being launched from that territory by international terrorism's local agents? As mentioned, we have no need to thoroughly examine this issue, as we have found that regulation 43 of The Hague Regulations authorizes the military commander to take all necessary action to preserve security. The acts which self defense permits are surely included within such action. We shall, therefore, leave the examination of self defense for a future opportunity.
Of course, the court is correct. The idea that a state can defend itself from another state but not from non-state terrorism is absurd.
But to an extent, the entire discussion is moot - because (as implied here) Israel has not based its legal arguments for Gaza wars primarily on the UN Charter paragraph 51 anyway!
Israel wrote, concerning Operation Cast Lead in 2009, "Israel’s right to use force against Hamas was triggered years ago, when
Palestinian terrorist organisations, including Hamas, initiated the armed conflict which is still ongoing."
For Operation Protective Edge in 2014, Israel also said it was part of a continuous war against armed groups, and only mentioned self-defense (without invoking Article 51) as a secondary reason:
The confrontation between Israel and these terrorist organisations in the Gaza Strip satisfies the definition of armed conflict under international law. The 2014 Gaza Conflict was simply the latest in a series of armed confrontations, precipitated by the continuing attacks perpetrated by Hamas and other terrorist organisations against Israel. After previous periods of intense fighting (including in 2009 and 2012), Hamas agreed to ceasefires, each of which it later breached, leading to Israel’s resumption of responsive military action to defend its population from attacks. Hamas’s attacks leading up to the 2014 Gaza Conflict were thus part of a larger, ongoing armed conflict. But even if one were not to consider the 2014 Gaza Conflict part of a continuous armed conflict justifying Israel’s use of force both previously and during this time, Hamas’s armed attacks against Israel in 2014 would independently qualify as an armed attack triggering Israel’s inherent right of self-defence.
In short, the right to self-defense is inherent for everyone, not based on Article 51. This is quite obvious. Which just proves that those who obsess over Article 51 to give the impression that Israel cannot defend itself are simply being malicious and antisemitic by claiming that Israel uniquely is not legally allowed to defend itself.
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