Israel claims that its recent attacks on Gaza are justified under international law. In doing so, it invokes Article 51 of the UN charter which clearly recognizes the right to self-defence as an “inherent” right of States. In a statement made before the Security Council at the outset of the latest hostilities, Israel’s Ambassador to the United Nations, Gabriela Shalev, clearly invoked Article 51 by claiming that:
“In its military operation, Israel exercised its inherent right to self-defence, enshrined in Article 51 of the United Nations Charter. Any other State would have acted in the same manner faced with similar terrorist threats.”
Later on, the Permanent mission of Israel reiterates this position in a letter addressed to the Secretary General. Once again, Israel officially claims that:
“In response to Hamas’ continuous terrorist attacks, Israel has been acting in accordance with its inherent right to self-defence enshrined in Article 51 of the Charter of the United Nations.”
To counter Israel’s assertion, opponents argue that the right to self-defence – while being an inherent right of States – is subject to the customary rules of proportionality and necessity. They note that Israel’s massive military operations in Gaza do not meet these two conditions (the military operations are excessively violent compared to the alleged attacks that provoked them) and conclude that they are therefore illegal under international law.
Reza Nasri is an international lawyer based at the Graduate Institute of International and Development Studies in Geneva.In my opinion, both sides miss a crucial point.
Non-applicability of Article 51 in occupied territories
The right to self-defence – as recognized by Article 51 of the Charter – is a right attributable to “States” only in their “international” relations. A State is allowed to recourse to self-defence if it is subject to another State’s unlawful use of force. The situation must involve:
a) An armed attack (of sufficient gravity);
b) Conducted between States (or from one State territory) – as main subjects of international law;
c) And be of an international character.
Article 51 does not apply to a situation that involves an Occupying Power (the State of Israel) acting within occupied territories under its own authority and responsibility. In legal terms, Israel cannot invoke the right to self-defence under Article 51 to justify the use of military force in territories on which Israel itself exercises effective control, at least since 1967. (Although Israel withdrew its troops from Gaza under the “disengagement plan” in 2005, Israel’s relocation of its troops from the occupied land does not end its status as the “Occupying power”. Israel continuously maintained control over Gaza’s borders, air and sea space, water, electricity, sewage and telecommunication systems and because of that, Gaza remains an occupied territory as defined in international law. In fact, UN Security Council resolution 1860 (pdf) issued on January 8, 2009 clearly notes that: “the Gaza Strip constitutes an integral part of the territory occupied in 1967”.)
Indeed, it would be inconceivable for most of us to imagine any other country barricading a city or a district within a territory under its own watch, then use F-16 fire jets, high-tech Cobra helicopters, ground troops, cluster bombs, white phosphorus and depleted uranium ammunition, killing thousands of its inhabitants under the pretext of combating, for instance, street gang criminality. It would be even more absurd if that country justified all that by invoking an extraneous right under the UN Charter. Yet, this is exactly what Israel has done in Gaza.
Palestine (Gaza strip and the West Bank) is not yet considered an independent sovereign State – especially not by Israel. The swath of land known as “Palestine” (which encompasses Gaza) is an inhabited territory under Israeli mandate and occupation since 1967. For Israel to become entitled to invoke Article 51 of the UN Charter (which is a multilateral inter-state treaty) and benefit from its relevant rules of self-defence, Israel needs at least to recognize that it is dealing with another “State” (be it a State that directly commits armed attacks against Israel or a State whose territory is being used by an autonomous hostile group to mount attacks against Israel). But Israel cannot persistently rebuff Palestine’s Statehood on one hand, and, on the other hand, treat Palestine as a State whenever it needs to utilise the Charter to legitimise its use of force against.
In other words, Israel’s self-defence argument entails the precondition of recognising Palestinian Statehood; while not doing so entails setting the Charter’s legal subterfuges aside and solely complying with the strictures of Humanitarian law (especially the Geneva Conventions) regarding occupation.