In October 2025, UN Special Rapporteur Francesca Albanese
issued a report containing a statement so sweeping, and so apparently absurd, that it merits careful examination. In Paragraph 41, she writes:
Given that the occupation of Palestinian territory is an ongoing unlawful use of force in violation of the UN Charter, nothing Israel does there can be understood as 'defensive' in nature.
This formulation, presented as a straightforward application of international law, in fact creates a logical and legal framework that applies to no other nation on Earth. By following its implications to their logical conclusions, we can see that Albanese has constructed an argument that effectively strips Israel - and Israel alone - of the inherent right to self-defense recognized under the UN Charter.
Albanese's position rests on two interconnected claims. First, she maintains that Gaza remains "occupied" despite Israel's complete withdrawal of military forces and civilian settlers in 2005. In her view, and that of the International Court of Justice's 2024 advisory opinion, Israel exercises "effective control" over Gaza through its blockade of land, sea, and air access. I believe that
this is absurd for reasons I have
discussed many times before.
Second, she argues that Article 51 of the UN Charter, which preserves every state's "inherent right of individual or collective self-defence if an armed attack occurs", does not apply to threats emanating from territory a state occupies. When you occupy territory, she contends, threats from within that territory are internal security matters to be handled through law enforcement mechanisms, not military self-defense.
Applied to October 7, 2023, this reasoning produces a remarkable conclusion: Hamas's attack, which killed approximately 1,200 people and resulted in 250 hostages, did not trigger Israel's right to self-defense under international law. In Albanese's framework, this was not an armed attack by a foreign actor but rather an internal security breach within occupied territory. Israel's response - even airstrikes launched from Israeli soil before any ground forces entered Gaza - therefore cannot be characterized as defensive, according to Albanese.
The first problem with Albanese's framework is that it contradicts itself. The entire legal edifice of occupation law presumes that an occupier exercises actual authority over the occupied territory. The 1907 Hague Regulations, the foundational text of occupation law, state that territory is occupied when it is "actually placed under the authority of the hostile army." The Fourth Geneva Convention imposes extensive duties on occupying powers precisely because they exercise effective control: they must maintain public order, ensure the welfare of the civilian population, and administer the territory responsibly.
If Gaza is occupied, then Israel has both the right and the duty to maintain security within it. An occupying power that cannot lawfully respond to armed attacks emanating from territory it supposedly controls is not an occupying power in any real sense. . Albanese's framework asks us to accept that Israel bears all the legal obligations of occupation while being denied the most basic prerogative any occupier must possess: the ability to maintain order.
More fundamentally, her insistence on Gaza's occupied status inadvertently undermines the occupation claim itself. Prior to October 7, Israel had no military or civilian presence inside Gaza. Hamas governed the territory, collected taxes, ran schools and hospitals, maintained its own security forces, and - crucially - built and deployed military capabilities without any Israeli interference. If Israel could not exercise routine administrative authority inside Gaza, in what meaningful sense did it "occupy" the territory?
I propose a simple, common-sense test for whether territory is truly occupied: Can the alleged occupier fire a public sanitation worker in that territory?
This test cuts through abstract legal theorizing to ask a practical question about who actually exercises governmental authority.
In Gaza before October 7, the answer was emphatically no. Israel could not fire a Gaza municipality sanitation worker without launching a military operation that would be treated - by Hamas, by the population, and by most of the world - as an invasion of foreign territory. Israel could not collect taxes, regulate businesses, appoint officials, or enforce its criminal law against Gaza's population. To do any of these things, it would have to fight its way in.
This practical test reveals what the abstract legal category of "effective control through blockade" obscures: Gaza was not occupied in any meaningful sense. Hamas exercised sovereign authority within the territory, and Israel's control of some borders, maritime access and all airspace did not substitute Israeli administration for Hamas governance.
Notably, this test also reveals the complexity of the West Bank itself. In Area A, where the Palestinian Authority exercises full civil and security control, Israel similarly cannot fire a sanitation worker without mounting an incursion. This suggests that even critics of Israeli policy should acknowledge that the West Bank is not a single legal unit, and that Area A functions more like an autonomous enclave than occupied territory.
The deeper problem with Albanese's framework is that it creates a standard applied to no other country. Consider how international law has treated analogous situations:
When the United States invaded Afghanistan after September 11, 2001, the action was widely accepted as lawful self-defense against al-Qaeda, even though U.S. forces were now operating on Afghan soil.
When coalition forces entered Syria to fight ISIS without Syrian government consent - an arguably illegal intervention - they retained the right to defend themselves against attacks. The legality of their presence did not extinguish their inherent right to self-preservation.
Article 51 of the UN Charter contains no clause stating "unless your forces are already on someone else's land." The right to self-defense is territorial-agnostic. A soldier under fire can return fire regardless of whether his presence in a given location is lawful. This is not merely a principle of international law; it is a recognition of basic human reality.
Albanese's framework would change this, but only for Israel. Taken literally, her position means that Israeli troops in the West Bank cannot return fire if attacked, and that Israel cannot intercept rockets launched from Gaza until they are physically over Israeli territory. No other country faces such a constraint. No other country is told that because it disputes territory with a neighbor, or because it maintains a military presence in contested areas, it has forfeited the right to defend its citizens.
Albanese attempts to soften her position by acknowledging that Israel has a "right to protect" its territory and citizens. But this narrow concession, limited to targeted, law-enforcement-style operations, is worlds away from the robust self-defense rights that Article 51 provides. When 3,000 armed fighters breach your border, massacre civilians, and take hundreds of hostages, the response is not a police action. It is war. Every other nation on Earth would be permitted to treat it as such.
The ICJ's own 2004 advisory opinion on Israel's security barrier, which Albanese frequently cites, did not go as far as she does. The Court held that Israel cannot invoke Article 51 against threats from within occupied territory, but its reasoning was specific: because Israel is the occupying power, it must use occupation law frameworks rather than the law of inter-state armed conflict. The Court never said that Israel loses all defensive rights because its presence is illegal. Albanese's rhetorical escalation to "nothing Israel does there can be understood as defensive" is advocacy language, not a mainstream statement of international law.
At the same time that Albanese denies Israel the basic right of self defense, she gives Hamas and other terror groups carte blanche to attack Israel as "legitimate resistance." The only thing she opposes is attacking Jewish civilians directly, for now.
Francesca Albanese's framework relies on a definition of "occupation" so elastic that it can encompass territory Israel does not control, while simultaneously denying Israel any means of asserting control. It creates obligations without corresponding rights. It demands that Israel behave as an occupier selectively while maintaining that some even mandatory actions of occupiers are illegal in Israel's case.
The sanitation worker test reveals what this abstraction conceals: occupation is about who actually governs a territory, who can hire and fire its workers, who collects its taxes and runs its schools. By that practical measure, Gaza was not occupied before October 7, which means October 7 was an armed attack from external territory triggering full Article 51 self-defense rights.
International law should be applied consistently to all nations. Frameworks that single out one country for a unique disability - stripping it of rights afforded to everyone else -a re not law at all. They are politics dressed in legal language.
Thursday, November 27, 2025
Elder of Ziyon
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