Israel’s Right to Self-Defense Under International Law – JURIST – Commentary

In recent weeks, the international community has been confronted with a deeply alarming crisis unfolding in Israel and the Occupied Palestinian Territories. On October 7th, 2023, the Harakat al-Muqawama al-Islamiya [Islamic Resistance Movement], “Hamas,” and Palestinian Islamic Jihad (PIJ), initiated an attack on the State of Israel, which reportedly resulted in the killing of 1,400 individuals with more than 5,600 injured. During the attack, Hamas invaded many areas of Israel, including Kibbutzes Be’eri and Kfar Aza, and abducted more than 241 hostages.

Following October 7, Israel instituted a series of ongoing attacks on the Gaza Strip, with thousands of air and ground strikes and alleged use of white phosphorous in munitions, killing thousands of individuals. This contribution analyses the Israeli claim of the “right to self-defense against Hamas and opposes Israel’s contention that this right to self-defense does not violate international law.

The historical conflict between Israel and Palestine has been marked by a series of contentious events. Following the 1947 UN Partition Plan for Palestine, Israel expanded its territory through the use of force, displacing Palestinians in the process. The expansion persisted despite events like the Suez Crisis (1956), the Six-Day War (1967), United Nations Security Council Resolution 242 (1967) and the Yom Kippur War (1973), leading to the fragmentation of Palestinian land into the Gaza Strip and the West Bank, including East Jerusalem. Despite periodic violence, negotiations, and an Advisory Opinion by the ICJ on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territories, the Israeli-Palestinian conflict remains unresolved.

Since 2007, Israel has imposed a strict blockade on Gaza, severely limiting the movement of people and goods. This blockade caused alarming unemployment rates, high dependency on food assistance, and limited access to essential resources like fresh water and electricity. It also led to the displacement of a significant number of Palestinians. Additionally, Israel has continued its policy of constructing illegal settlements in the Occupied Palestinian Territory, resulting in forced evictions, home demolitions, and the dispossession of Palestinians. Incursions and raids by Israeli security forces often lead to civilian casualties, including children, exacerbating the humanitarian crisis. In recent years, Israel escalated its settlement activities, tolerated violent attacks by settlers against Palestinians, conducted military raids on holy sites and refugee camps, and launched drone strikes, resulting in numerous displaced people and a catastrophic humanitarian situation. Following the October 7 attack by Hamas, Israel declared a “state of war alert” as the right to self-defense and initiated strikes on various targets in the Gaza Strip, with the justification of eliminating Hamas.

The right to self-defense, in both international and criminal law contexts, refers to the justified use of force to repel an attack or imminent threat against oneself, others, or a legally protected interest. Under international law, the notion of self-defense can be traced in two different institutions i.e., jus ad bellum (international law regulating the resort to force) and jus in bello (international law regulating behavior in war). Article 2(4) of the UN Charter strictly prohibits states from using force that threatens the territorial integrity or political independence of any nation, except in cases of individual or collective self-defense as stated in Article 51. Article 51 of the Charter states “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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.”

This exception only applies until the UN Security Council takes the necessary measures to maintain international peace and security. Both the prohibition of unilateral use of force and the self-defense exception are recognized as fundamental principles of customary international law and have the highest legal standing, called jus cogens. Thus, the concept of self-defense in international law is a multifaceted and intricate subject. The primary objective of self-defense, as per Article 51, is to halt and repel an armed attack, including the possibility of expelling the aggressor if they have invaded the victim state’s territory. However, complexities arise when the attack has ceased, and the victim state seeks to defend itself against potential future threats. In such situations, the use of force can have preventive, punitive, deterrent, or combined purposes, leading to varied justifications and implications.

Distinguishing between “armed reprisals and “legitimate self-defense” actions involves several critical factors. One significant element is the absence of an armed attack, which might not meet the threshold required for a legitimate act of self-defense. Additionally, the punitive intent behind an action and the timing of the response are crucial in differentiating between a lawful act of self-defense and an unlawful armed reprisal. Despite the formal prohibition of armed reprisals, instances resembling such actions continue to occur, with involved states often justifying them as defensive measures. This disparity between formal rules and state practices creates challenges in defining the “legitimate aims and proportional use of force” in the “right to self-defense” within the scope of international law.

Within the notion of the “right to self-defense,” there are different theories. One theory, known as the “halting and repelling theory,” suggests that the use of force in self-defense is limited to stopping and repelling the ongoing armed attack. Another theory, the “trigger theory,” argues that once an armed attack has occurred, the victim state can defend itself against the aggressor and its potential threats, regardless of the attack’s scale. The “future attack theorysuggests that a state can use force not only to respond to the ongoing attack but also to prevent future attacks, even if they are not imminent. These theories reflect the ongoing debate about the legitimate aims and proportionality in self-defense under international law.

However, the question of whether self-defense is justified in response to an armed attack, especially when it stems from an armed group rather than another state, and whether the attack must materialize to legally invoke self-defense, remains a complex issue under debate among scholars. In the recent conflict between Israel and Hamas, firstly it is imperative to understand the geopolitical dynamics between the two entities. A critical consideration lies in the fact that a state (Israel) cannot maintain control over the territory (Western Bank and Gaza) it occupies while simultaneously launching military attacks because the occupied territory is “foreign” and poses an external national security threat. So, can the “right to self-defense” be exercised by the occupant (Israel) wherein it is already using police force to maintain law and order?

Under international law and community, the West Bank and the Gaza Strip have been duly recognized as militarily occupied territories since 1967. Israel, as the occupant, has the right to protect itself and its citizens from attacks by Palestinians within these territories. However, Israel also has a responsibility to maintain law and order, ensuring the security and well-being of the occupied population, as outlined in Regulation 43 of the Regulations concerning the Laws and Customs of War on Land. This legal framework allows the use of force for law enforcement purposes but emphasizes the need to prioritize civilian safety and use lethal force only as a last resort. These principles distinguish the right to self-defense from the right to police, both of which are governed by the laws of armed conflict and differ from peacetime human rights law regulations.

Under international law, once the conflict takes place, jus ad bellum presides over it. Thus, following the Regulations concerning the Laws and Customs of War on Land, when an occupation is already in place (Western Bank and Gaza Strip), the occupying state (Israel) cannot use militarized force in response to an armed attack; it can only use police force to restore order. Scholar Noura Erakat (Associate Professor at Rutgers University) in the context of Israel’s right to self-defense argued upon the importance of differentiation between “self-defense” and “defense” and asserted that the ambit of “self-defense is narrower and should not be confused with general notions of defense.” If Israel’s claim of the right to self-defense is taken as valid under international law, then it would lead to the legitimacy of the authority of the occupant state (Israel) to use its military along with police over the occupant terrority (Western Bank and Gaza Strip). Thus, it is unclear how Israel as an occupant can claim the right to self-defense when it has been controlling, policing and making settlements in the OPT since 1967. The context of Hamas’s retaliation, named Operation Al-Aqsa Flood, underscores their perception of defending Palestinian interests in response to Israel’s actions, particularly the raid and attack at the Al-Aqsa Compound (Temple Mount) in the Old City of Jerusalem. This complex situation challenges Israel’s portrayal as a victim state, raising questions about the legitimacy of its claim to self-defense in the ongoing conflict.

Arguendo, there exists Israel’s right to self-defense against Hamas attacks. However, the same right has to respect International Humanitarian Law (‘IHL’) and meet the principle of proportionality. Proportionality in jus ad bellum, a fundamental concept in international law, necessitates a careful evaluation of the legitimate ends pursued through the use of force and the necessity of that force to achieve these objectives. At its core, proportionality requires determining whether the force used aligns with the legitimate ends sought. The term “necessary” holds a pivotal role, encompassing two distinct interpretations: first, the availability of non-forcible means to address an armed attack, and second, the rational connection between the force used and the legitimate ends of self-defense. The proportionality test involves three key questions: first, whether the restriction in question aims to achieve legitimate ends; second, whether there are less restrictive means available to achieve the same ends; and third, whether the harm caused to the protected right by the restriction outweighs its benefits.

So with respect to IHL principles and proportionality, Israel was obligated to refrain from using starvation as a tactic against Gaza’s civilians, minimize harm to civilians and civilian infrastructure, and allow the return of displaced individuals post-conflict. However, in contrast, Israel closed all borders and severed essential services like electricity, water, and food supplies, as well as conducting airstrikes on densely populated areas and vital infrastructure. Israel’s armed forces launched air strikes on residential buildings, including apartments in the Rimal neighborhood in Gaza City; mosques; refugee camps, such as Jabalia Refugee Camp and Nuseirat Refugee Camp); and the UNRWA School in Central Gaza’s al-Maghazi refugee camp.

According to Gaza’s health ministry, an Israeli strike killed hundreds of Palestinians at Al-Ahli Arab Hospital in Gaza City. Israel conducted an airstrike on the complex of the Greek Orthodox Church of Saint Porphyrius, the oldest church in Gaza, resulting in casualties. Reports indicate widespread disruptions in essential services, including halted telecommunications, schools (with over 40 percent targeted), mosques, churches, and attacks on journalists, healthcare professionals, ambulances, and humanitarian workers, including UNRWA staff, with 53 fatalities reported. Several pieces of video evidence have emerged wherein Israeli forces have assaulted Palestinian detainees. Furthermore, it has also been reported that IAF strikes have targeted the Rafah crossing to hinder the delivery of essential supplies to the injured individuals in the Gaza Strip. By the end of October 2023, the Gaza Ministry of Health reported a devastating toll, with 8,005 residents, including 3,324 children, confirmed dead, and approximately 20,242 individuals injured. Reports have also shown around 1,800 people were feared to be trapped or deceased beneath the debris, and 881 families have experienced the profound loss of multiple members, including the wiping out of entire family units.

Israel’s attacks, which caused a humanitarian catastrophe by collectively punishing the entire population of Gaza, failed to meet the standards outlined in the UN Global Counter-Terrorism Strategy. The disproportionate use of force, coupled with the dehumanizing rhetoric used against Palestinians and the manipulation of essential resources such as food, stands in violation of the proportionality requirement of the right to self-defense, IHL, and International Human Rights Law (IHRL). The Israeli Defense Minister’s order to deliberately siege food, electricity, and fuel as a wartime strategy violates IHL and constitutes a “war crime” under Article 8(2)(b)(xxv) of the Rome Statute, and could also potentially satisfy the legal criteria for the crime against humanity of inhumane acts (Article 7(1)(k)) of the Rome Statute. A complete siege, especially for an extended duration, is prohibited by IHL under Article 54(1) of the First Additional Protocol to the Geneva Conventions. This principle is also emphasized in Article 23 of the Fourth Geneva Convention and Article 70 of Additional Protocol I. Furthermore, the extensive damage caused to civilian infrastructure, including schools, hospitals, and media outlets, highlights the disproportionate nature of the military operations and violates Article 57 of the Additional Protocol I to the Geneva Conventions.

IHL mandates the protection of civilian populations, medical personnel, journalists, and cultural assets during armed conflicts, regardless of the party’s role as an aggressor or defender. Indiscriminate attacks, which fail to differentiate between civilians and combatants, are strictly prohibited in all types of armed conflicts, as outlined in various articles of Article 48 of the First Additional Protocol to the Geneva Conventions, Art. 51(1) and (2) of Additional Protocol I, and Article 13(1) of the Additional Protocol II to the Geneva Conventions. Thus, Israel’s indiscriminate targeting of densely populated neighborhoods and civilian facilities raises questions about the whole notion of “necessity” and “proportionality” in the use of force by Israeli authorities in the name of the ‘right to self-defense’ and violates international law and constitutes “war crimes” under the Rome Statute.

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