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CAN ISRAEL’S RETALIATION TO THE 7TH OCTOBER ATTACKS BE JUSTIFIED UNDER THE RIGHT OF SELF-DEFENCE IN INTERNATIONAL LAW?


Introduction

The Israel-Palestine conflict came under the spotlight once again in October 2023, when thousands of Palestinian militants launched an offensive against Israeli civilian cites on Sabbath under an operation codenamed Al-Aqsa Flood. These attacks claimed the lives of 1400 civilians in a single day with an additional 240 being taken hostage. However, Israel did not just  sit-back instead responded with a large-scale counter offensive which included an embargo of water and electricity supply. This was further followed with a ground invasion that has claimed thousands of civilian lives. This blog examines whether the actions of Israel can be justified under the doctrine of ‘right to self-defence’ against actions of an occupied territory seeking to fulfil its right to ‘self-determination’.


Applicability of Article 51 of the United Nations Charter

The inherent right of self-defence of a State has been expressly defined under Article 51 of the United Nations Charter and reflects Customary International Law. However, the application of this provision itself comes under scrutiny as this provision allows the right of self-defence only against a Member State and not occupied territories. While Israel disputes that the West Bank and the Gaza trip are occupied territories, it has repeatedly stated that it shall comply with rules of International Human Rights Law while dealing with Palestine and the Gaza strip.


The question regarding whether the activities of Hamas Militants can be attributed to Palestinian Government points to the major gaps left unfilled by International Humanitarian Law as Palestine under International Law is regarded as an occupied territory. Article 43 of the Hague Relations accepted as International Humanitarian Law require occupying States to oblige to secure public order and protect human rights. Furthermore, Israel’s occupation violates the right to self-determination of the Palestinians that has been guaranteed by the ICJ in many cases, most recently in the Chagos case.


While on the face of it so appears that Article 51 of the UN Charter is not applicable to the present case, tribunals such as the International Court of Justice have offered a broader explanation on the conflict between the internationally recognised doctrines of Right to ‘Self-Defence’ and the Right to ‘Self-Determination’. The author shall examine the decisions of the ICJ and its application in the present scenario in the following sections.


Unjustifiability of Israel’s Occupation

The Oslo Accords signed thirty years ago permit a certain level of Israeli presence in Palestinian territory. Additionally, they require Israel to partially withdraw its control in some places, which allows some self-governing Palestinian institutions to function there even though the region is still under occupation. Nevertheless, the PLO's agreement to Oslo was obtained by Israel during an unlawful use of force dating back to the 1967 conflict, and the clauses in Oslo that seem to allow Israel to continue existing on Palestinian territory are incompatible with international law's right to self-determination which has jus cogens status, which the Oslo accords do no enjoy. Due to the combined and individual effects of these two contradictions, international treaty law intended to legitimise the Israeli occupation in Palestine cannot be allowed to supersede established international norms.


Understanding Israel’s claim of ‘Self-Defence’ through ICJ precedents

The ICJ case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), provides that the ‘Right to Self-Defence’ can be claimed only against an ‘armed attack’. However, the ICJ laid down a large number of constrains on a State’s right to claim this right, the most relevant pertaining to the case of Israel being that practicing unnecessary and dispropotiante force cannot be used to violate another State’s ‘Right to Self-Determination’ and ‘Sovereignty’. If a responding State is found to have been violating any of these Rights of other entities, this right can be voided on the grounds of violating Customary International Law. A responding State is said to have violated Customary law when its military force has been disproportionate to the force employed by the attacking entity. This is evident in the case of Israel’s bombing of Palestinian territories in Gaza that has claimed the lives of thousands of unarmed civilians as well as places of worship and hospitals providing humanitarian aid to the victims of conflict. These actions of Israel further violate the Fourth Geneva Convention.


For Israel to successfully claim the ‘Right to Self-Defence’ it must satisfy two conditions. Firstly, Israel must recognise the collective right of the Palestinians ‘Right to Self-Determination’ and secondly, Treat Palestine and the occupied territory in Gaza as a separate class in itself by recognising the sovereignty and independence of Palestine.


Another dimension to Israel’s retaliation in Gaza can be examined through the lens of ‘Right to Self-Defence’ against Non-State actors. The ICJ in the case of DRC v. Uganda of highlighted the two forms under which a state’s aggression against non-state actors can occur. forms. The first involves a use of force which only targets the non-State actors and their bases of operation in foreign territory. The second is where the use of force (also, perhaps only) targets the State from whose territory the non-state actors operate.  A reading of the DRC Case seems to provide legal justification for Israel’s response to the Hamas attacks. The DRC Case affirmed Article 3(g) of UNGA Resolution 3314 on the ‘definition of aggression’. The Court held that an act under Article 3(g) that includes under ‘aggression’ sending armed bands on behalf of a State which carries out armed attacks against under another State. However, it is pertinent to note that the actions of Hamas militants even if attributable to Palestine are protected from violation of this ICJ Precedent and UNGA Resolution as these apply only to territories that enjoy ‘Statehood’ which Palestine does not.


Israel’s actions cannot said be said to fulfil Jus ad bellum

The claim of self-defence in the 20th and 21st century has diminished the line between jus ad bellum and jus in bello. Israel’s massacring of Palestinian civilians cannot follow their justification for the fulfilment of the former, and definitely is in violation of the guidelines purported by the latter. States have frequently employed the self-defence argument in last few decades to justify not only global conflicts, but also war against terror organisations.  Israel’s justification of the jus ad bellum is coming at a cost of violation of the jus in bello, and International Law must not permit the diminishing of one ‘rule of war’ for the fulfilment of another.


Israel’s justification of jus ad bellum cannot allow the mass killing of civilians, bombing of places providing shelter to protected persons. Israel’s retaliation in Palestine clearly targets persons protected under Article 4 of the fourth Geneva Convention. The systematic violation of International Humanitarian Law by Israel cannot be allowed for the sole reason of the said fulfilment of jus ad bellum.


Conclusion

The loss of human life cannot be justified under any circumstances. The author of the blog in no way justifies the actions of Hamas terror outfits that claimed over a thousand lives of innocent Israeli civilians. The author would like to further emphasise that the purpose of this blog is to highlight the fact that the retaliation of Israel in response to Hamas attacks can also not be justified under International Law.


If anything, the actions of Israel in Palestine through its imposed embargo for the denial of water and electricity violate International Human Rights law. Furthermore, the actions of Israel’s military by indiscriminate bombing of schools, hospitals, churches, mosques and other places of shelter worsens the already existing allegations of Israel’s violations of International Law. The Actions of Israel by attacking these places targeting protected persons violate both the Hague and Geneva Conventions on the Rules of War.


Israel cannot seek to justify its actions in Palestine by citing the existing loopholes present in International Humanitarian Law. The ICJ precedents clearly lay down a framework under which the ‘right to self-defence’ can be claimed, and place upon the State claiming it a large number of obligations and restrictions which must be adhered to when a State resorts to warfare invoking this right.  The cases of Nicaragua and DRC emphasise that the ‘Right to Self-Defence’ cannot be invoked to undermine a different State’s ‘Right to Self-Determination’.


It would be an exaggeration to say that the Israel-Palestine conflict shall come to an end after this ongoing conflict ceases. A seven-decade occupation cannot be said to end until both the Parties acknowledge the rights of the other. The most feasible way for both the Parties involved in this conflict is to recognise the sovereignty of the other, and it comes down to whether Israel can accept existing International legal framework and recognise the Palestinian people’s right to Statehood.





Author: B V Sai Rishi

University and Year: Christ University, Bangalore, 2nd Year

Programmee: Law Student

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