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Israel-Palestine war: Israel's claim of 'self-defence' has zero legal legitimacy

November 21, 2023 at 5:47 pm

Civil defense team and civilians conduct a search and rescue operation in the rubble of the destroyed building belonging to Abu Rabea family hit by Israeli forces after casualties, including both fatalities and injuries are reported in Rafah, Gaza on November 20, 2023 [Abed Rahim Khatib – Anadolu Agency]

Since the Hamas-led attack of 7 October, British Prime Minister Rishi Sunak has repeatedly stated that Israel has an absolute “right to defend itself“.

White House spokesperson John Kirby went even further, saying that there were “no red lines” that Israel could cross in its assault on Gaza.

With these utterances, the US and the UK have given Israel the green light to unleash the full force of its military against the people of Gaza. Subsequently, the world (to date) has witnessed in horror Israel killing over 13,000 people in Gaza, of whom 5,500 are children.

Israel, and the states that have failed to call a ceasefire, use Article 51 of the UN Charter to claim legitimacy for Israel’s blanket attack on the civilian population in Gaza. Israel in the past has attempted to use “self-defence” to justify a number of its actions, including the building of the wall in the West Bank.

The International Court of Justice (ICJ), in its advisory opinion on the legal consequences of the construction of a wall in the Occupied Palestinian Territory in 2004, confirmed that Article 51 “recognises the existence of an inherent right of self-defence in the case of armed attack by one state against another state”.

However, Israel accepts that it is occupying Palestinian land and denies the legitimacy of Palestinian statehood, therefore Gaza and the West Bank are not a “foreign state” for the purposes of Article 51. The ICJ therefore concluded, in that same judgment, that Article 51 had no applicability to Israel since Palestine is occupied.

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Israel withdrew its illegal settlers from Gaza in 2005, but maintained full control of the borders, including the supply of fuel and electricity, cutting these off at will.

Amnesty International described the situation as a “15-year ongoing… collective punishment”. Despite arguments by Israel that its occupation of Gaza ended in 2005, it has remained de facto occupier and therefore the applicability of the ICJ opinion is still upheld.

‘Occupation law’

In the absence of Article 51, it is the law of belligerent occupation that applies between Israel and Palestine.

The “occupation law” is part of international humanitarian law which sets parameters of conduct in war. Found in the 1907 Hague Regulations, the Fourth Geneva Convention 1949 and its optional protocols, it identifies occupied people as “protected”.

These regulations make several things illegal, including collective punishment, the annexation of land, reprisal attacks, the destruction or seizure of property, and collective or individual forcible transfer of people, among other things.

Israel has contravened every single one of these laws on multiple occasions, resulting in repeated censure from the UN General Assembly and Security Council.

Occupation law also imposes an obligation on the occupying state to provide public order through policing, safety, food and medical care.

Occupation law prevents an occupying state, in this case Israel, from using resistance to occupation as a justification for attacking the occupied people in a collective way. It can, however, defend its people, but is limited in the extent to which this can occur.

Where violence from Palestinian resistance occurs, Israel is bound to respond by using police powers afforded under occupation laws, intended to keep the peace and, exceptionally, to use military force which must adhere to international humanitarian laws.

The destruction of entire neighbourhoods, the killing of thousands of civilians, and the cutting off of all basic supplies do not conform to international law.

Conversely, Palestinians have the legal right to resist occupation in pursuit of their struggle for self-determination. This right is enshrined in Article 1 of the UN Charter, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

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The latter states: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

The UN General Assembly Resolution 2672 in 1970 affirmed the right of Palestinian people to self-determination, as did the ICJ’s advisory opinion on the legality of the wall (2004). Resistance to occupation is legitimate for the purposes of self-determination.

Protected civilian population

This struggle can take all legitimate forms. The Palestinian people’s struggle for self-determination has been overwhelmingly non-violent. The peaceful protests in Gaza of the Great Return March and in the West Bank were met with deadly force from Israel, killing hundreds and injuring thousands.

Occupation law requires armed resistance movements to be identifiable and separate from the civilian population, with military attacks only legitimate on those resistance fighters. Israel has claimed to be attacking Hamas targets in Gaza while, in reality, it has disregarded the civilian population, displaced over a million people and carpet-bombed northern Gaza.

This has included civilian infrastructure, homes, and buildings protected under occupation law, such as schools, places of worship and hospitals.

Israel’s latest offensive in Gaza is an intensive bloody repeat of earlier military assaults against a protected civilian population. In 2008-2009, a 23-day bombing campaign killed 1,400 Palestinians; in 2012, an eight-day shelling killed some 150 Palestinians; in 2014 a 50-day attack killed 2,200 Palestinians; and in 2021 a 21-day assault killed 260 Palestinians.

Israel has breached its obligations under occupation law countless times while portraying itself as the victim. In reality, international law clearly locates Israel as the aggressor.

Every single one of the politicians who has supported Israel’s actions in Gaza and refused to call for a ceasefire is complicit in Israel’s war crimes.

The plain reason for this is that Israel, as an occupying power, cannot claim “self-defence” for any military actions against Palestine territories it occupies.

Source: Middle East Eye

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.