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The ‘Made in Israel’ right to self-defence

February 22, 2024 at 6:00 pm

This picture taken from the Israeli border with the northern Gaza Strip shows Israeli soldiers watching Gaza City from a position on January 1, 2024 [MENAHEM KAHANA/AFP via Getty Images]

In the past, many critics of Israel described the country as above the law but, until recently, Israeli leaders resorted to double speak about achieving a political solution to the conflict.

Israel has a long track record of picking and choosing international legal norms to legitimise and justify its military actions. For example, the annexation of the Golan Heights, which is de jure Syrian territory, was done under the guise of self-defence.

What is novel in the post-7 October situation is that Israel aims to establish its brand of international law to legitimise its genocidal assault on Gaza.

From the onset, Prime Minister, Benjamin Netanyahu, opted to play the victim card, a tactic frequently employed by Israel. By portraying the 7 October attacks as “Israel’s 9/11”, he hoped to kill two birds with one stone, successfully diverting criticism away from himself while also creating acceptance for an ‘Israeli-made’ international law, which mirrors the right to self-defence while negating any legal protections for the Palestinians.

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Is Israel’s stance legally justified?

The right to self-defence, codified in Article 51 of the UN Charter, refers to the right of a State to use force in response to an armed attack. It is one of the exceptions to the prohibition of using force under Article 2(4) of the UN Charter. However, this right does not entitle States to unrestricted use of force. The exercise of the right to self-defence has certain conditions and limitations set by international law. These conditions are fundamental considerations in determining whether a country remains within legitimate grounds when exercising its right of self-defence and are among the fundamental principles of international law under Article 51 of the UN Charter.

However, Israel’s alleged implementation of this right post-7 October is completely disconnected from the essence of international law.

There are no innocent civilians in Gaza!

The first pillar of Israel’s self-styled right to self-defence is its characterisation of the entire population of Gaza as armed enemies.

International humanitarian law delineates between combatants and civilians and explicitly prohibits targeting civilians alongside military objectives. Indeed, the right to self-defence operates within this framework, and international law restricts States’ use of force in response to attacks to only the armed targets that are the source of the attack against themselves. In other words, the extension of the use of force to civilians beyond the sources of the threat cannot be justified under the right to self-defence.

To circumvent this stance, Israel bases its self-defence understanding on the criminalisation of the people of Gaza, claiming that they are members of Hamas, thus making them ‘legitimate’ targets.

Numerous statements from Israeli officials support this policy. Israeli President, Isaac Herzog, implied that there were no innocent civilians in Gaza and attempted to justify attacks on civilians by claiming that the entire Gazan population was responsible for the 7 October attacks. Likewise, Rami Igra, a former Mossad director, argued that, due to Gazans voting for Hamas, there is “no such thing as a non-combatant population in the Gaza Strip”.

From these official statements and actions on the ground, it becomes clear that Israel’s modus operandi associates an entire population with an organisation, making it a target.

The Israeli playbook worked on Western governments, which convey the same line, namely that Israel’s onslaught on Gaza, with its thousands of civilian casualties, constitutes self-defence.

Condoning collective punishment, the United States, Canada, the United Kingdom, Germany, France and Italy issued a joint statement reaffirming Israel’s right to self-defence against terrorism. While the statement gave lip service to the protection of civilians, it did not specify who they considered as “terrorists” in Gaza or what they meant by “terrorism”, leaving carte blanche to Israel.

An assault on proportionality

The second key breach of international law resides in proportionality.

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This principle applies in all conflicts, including those conducted within the scope of self-defence. When military targets are in areas with civilians and civilian structures, this principle prohibits attacks that may result in disproportionate civilian casualties, even if the targets are legitimate military objectives. In other words, if there is a risk that an attack may cause excessive, disproportionate collateral damage compared to the anticipated military advantage, the attack must be cancelled or halted.

Nonetheless, the Israeli army is not interested in the principle of proportionality. Its deliberate targeting of civilians and the quest to kill many of them are out of line with the criterion granted by this principle to the right to legitimate self-defence. While conducting military operations against armed resistance in Gaza, the Israeli army considers the people of Gaza as part of its military strategy, not as a community to be protected.

The airstrike on the Jabalia refugee camp is a case in point. The attack resulted in a significant number of civilian deaths and injuries. Following the attack, an official from the Indonesian Hospital in Jabalia stated in an interview with the BBC that the facility had admitted 400 individuals wounded in the incident, with 120 of them losing their lives.

The internationally recognised principle of proportionality stands in opposition to the unacceptably high human toll. So, Israel later released a statement specifying that the attack targeted a commander of Hamas, inadvertently admitting to disregarding the principle of proportionality.

Although Israel’s decision to conduct an airstrike on an area with tens of thousands of civilians solely to neutralise a single enemy element violated the principle of proportionality, the responses from the Western world, unfortunately, have not gone beyond merely “urging Israel to comply with international legal requirements”.

Unless the reactions against Israel’s abuse of international law go beyond feeble condemnations, the genocide unfolding in Gaza cannot be prevented.

While statements from Global South forces, like South Africa and Brazil are admirable, others should join the chorus and take concrete and deterrent steps against Israel’s manipulation of rules and actively enforce international law to protect the Palestinian population.

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