The Self-Defense Principle Re-examined: The Israel-Palestine Conflict in International Law
May 2021 clashes in the Gaza Strip between the Israeli Defense Forces and Hamas, Gaza’s de facto government, have caused the Israel-Palestine conflict to capture international attention yet again. The conflict can be dated back to the early 20th century, when the British Empire first took control over what was then known as the Palestinian mandate after the end of the First World War. Since then, the region has seen bitter disputes between the Arab majority and the Jewish minority over the ownership of the land. The conflict intensified after the United Nations (UN) proposal to partition the territory in 1948, which culminated in the eviction of more than 700,000 Palestinians in an event known as the Nakba, as well as increasing Israeli infringement upon the delineated Palestinian lands. Since 2005, Israel has committed to a process known as “distanciation,” in which Israel reduced its direct military occupation of Palestinian territories, leaving the strip of Gaza to stand alone. Despite this, Israel still maintains partial control over Gaza and exports to the territory through a joint Israeli-Egyptian blockade that restricts weapons from entering Gaza. Israel justified its decision by stating that it is for the purpose of self-defense against Palestinian attacks, whereas Palestinians argued that they are overwhelmed by these restrictions, notably the forced removal of Palestinian families living in certain areas of Gaza because of the Israeli blockade. [1]
As a result, the Israel-Palestine territorial dispute is simultaneously a legal dispute over the interpretation of international law—notably Article Forty-two of the Hague Regulations, which states that a “territory is considered occupied when it is actually placed under the authority of the hostile army.” [2] While Israel has formally declined the de jure applicability of the Fourth Geneva Convention in claiming occupation status, its government has stated that it will respect humanitarian de facto rules [3]. Similarly, the UN and the International Committee of the Red Cross have recognized that its rules of protection towards those living in occupied spaces are applicable to territories occupied by Israel. [4] Thus, the legal question becomes one of whether Israel’s claim of self-defense complies with international humanitarian law (IHL), notably the restrictions placed upon occupied territory under the UN Charter. This article argues that based on the principles of international law, Israel’s claim to self-defense is not legally justified, as Palestine is an occupied territory of Israel rather than a separate state. Israel’s current occupation undermines Palestine’s right towards self-determination, as is guaranteed by the International Court of Justice (ICJ). This argument, in fact, reveals gaps in IHL: while Israel’s current occupation undermines Palestine’s right to self-determination, ambiguities within the existing international legal frameworks prevent the International Court of Justice (ICJ) and other legal bodies from reaching a definitive conclusion on this question of Israeli self-defense.
Israel’s claim of self-defense in the recent conflict is evocative of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), a previous dispute over international law that was decided by the ICJ in 1968. During the Nicaraguan Contra War, the Fuerza Democratic Nicaraguense (FDN) and the Alianza Revolucionaria Democratic (ARDE), assisted by U.S.-backed contras groups, enacted violence against the new government of Nicaragua. When the Marxist Sandinistas took power following the Nicaraguan revolution, the U.S. supported the contras in rising against the new government, seeking to curb the spread of communism in Latin America. Nicaragua subsequently claimed that the United States was threatening to overthrow its government, to which the U.S. responded that the attacks occurred for self-defense purposes. [5] To reach a decision, the ICJ first consulted Article 51 of the UN Charter, from which it found that Nicaragua had not committed an “armed attack” against the United States. This, according to the Court, rendered the U.S. ineligible to claim the right to self-defense. Ultimately, the Court ruled in favor of Nicaragua, finding that the US committed several international law violations, in particular, violating the sovereignty of Nicaragua. The ICJ concluded that the US was “in breach of its obligations under customary international law not to use force against another State.” [6]
The Military and Paramilitary Activities judgement demonstrates that self-defense can only be cited in instances of an “armed attack,” and even then, that practicing unnecessary force and violating another state’s right to self-determination and sovereignty can void the original state’s assertion of its right to self-defense. [7] Just as the United States’ claim of self-defense to justify its use of force was undermined by Nicaragua’s sovereignty, so other states that use the same legal claim to uphold their actions, such as Israel, may run into the same problem. [8] According to the ICJ, all states are given a “right to self-determination,” known as a peremptory norm (jus cogens) of international law—a principle that supersedes all other legal claims. Thus, when a nation’s military force overrides this collective right to self-determination of a group of people, its actions become a violation of international law. [9] This is evident in Gaza, where Israel’s justification of force has been excessive and has endangered the self-determination of Palestinians, for example, through its hostile occupation of the Gaza Strip. [10] Essentially, for Israel to legitimately makes the claim of self-defense, it must legally ensure the right to self-determination to Palestinian people, by treating Palestine as a separate, sovereign state; in this case, however, Israel is both illegally occupying Palestinian territories such as Gaza and violating Palestinian rights that are guaranteed by ICJ precedent such as Military and Paramilitary Activities. [11]
Though Israel’s actions can be seen as a violation of international law, certain ambiguity within the international law doctrine prevents a conclusive response to this matter, illustrating a key issue within the Israel-Palestine conflict. Israel’s occupation of Palestine based on their claim of self-defense precipitates an additional dialogue about what constitutes a legitimate reason for war between these two states. In international law, this concept is known as jus ad bellum—the justification of going to war. Jus ad bellum includes issues such as self-defense and the proportional use of force in the context of war. [12] Jus in bello, another related concept within IHL, interprets the law during times of armed conflict. [13] This includes evaluating aspects such as the conduct of belligerent parties and human rights violations committed between them. [14] Israel’s self-defense argument draws upon jus ad bellum, defined in Chapter VII of the UN Charter as “actions with respect to threats to the peace, breaches of the peace, and acts of aggression.” [15]
Adopting this definition leads to two issues. Firstly, since the term “aggression” lacks a formal definition in international law doctrine. Under the International Criminal Court (ICC) Statute of 1998, the relationship between an “act of aggression” and a “crime of aggression” was not well defined. Eventually, the Kampala Amendments to the Statute of the ICC in June 2010 determined that a violation of the UN Charter would be deemed an “act of aggression.” It still remains unclear as to what degree of severity is required in order for a violation of the UN Charter to achieve this status. [16] Lacking a precise definition of “aggression,” in turn, gives powerful countries a license to continue instigating hostilities under jus ad bellum—claiming they are victims of another state’s “aggression.” Indeed, the Palestinian “aggression” cited by Israel under jus ad bellum can never reach a clear end point under the current, vague definition of “aggression.” Israel could continue to argue that Palestinians are carrying out aggressive actions for the purpose of defending their state. Moreover, both Israel and Palestine could claim that their nations faced “aggressions,” as Palestinians and Israelis are both defending their respective states for different purposes. [17] Clearly, the ambiguity of the term “aggression” gives belligerent parties leeway to rashly justify war.
Secondly, Israel’s repeated use of the self-defense argument also directly threatens the distinction between jus ad bellum and jus in bello. In the past two decades, the world has witnessed a marked increase of the self-defense argument to justify in global conflicts: it was cited not only to rationalize wars against nation-states, but also against non-state actors, such as global terrorist organizations. [18] As some international law scholars have noted, the rise of jus ad bellum has come at the cost of jus in bello. For instance, draconian counterterrorism measures may violate “jus in bello, including the toleration of a greater number of civilian casualties, and practices such incommunicado detention, torture and cruel and degrading treatment,” and yet can be all justified by the principle of self-defense against the “grave and imminent threat of terrorism.” [19] Clearly, the ambiguity of terms like “aggression” within jus ad bellum exacerbates the already asymmetric political power wielded by different countries, creating a situation where powerful states can justify conflict with less powerful states by accusing them of “aggression,” while their own aggression within these states goes unchecked.
Indeed, the concerning implications of using the self-defense principle become even more evident in wars enacted on behalf of influential nations such as the United States. A clear example is the recent War on Terror—the global anti-terrorist campaign launched after the September 11, 2001 attacks on the World Trade Center in New York City that were organized by al-Qaeda, a militant Islamist organization. [20] Similarly to how Israel justified its hostilities in Palestine by asserting that the Palestinians posed a threat towards the functioning of the Israeli state, during the War on Terror, the United States used the self-defense principle to defend lengthy wars in Afghanistan and Iraq to attempt the removal of the Taliban and Saddam Hussein from power. [21] In the process, the U.S. stretched the self-defense principle even further to justify its direct infringement of other countries’ sovereignty, which should have been protected by the Military and Paramilitary Activities precedent. Richard Hass, the Director of Policy-Planning at the State Department in 2002, asserted that the U.S. had right to intervene when other states ignore “obligations to the international community,” such as terrorism. In addition, the Bush administration advocated for a “right to intervene” for humanitarian reasons. [22] This, again, complicates and weakens jus in bello, since the United States subsequently carried out hostile actions against other states in the name of humanitarianism and self-defense. As jus in bello is a component within international humanitarian law, other similarly situated nations, such as Israel, could likewise use the language of humanitarianism and self-defense to defend their actions.
Clearly, current interpretations of the self-defense principle in international law fail to reign in the ability of powerful countries to carry out aggressive actions in pursuit of their own motives in other nations. As some legal scholars have asked, is Israel able to avoid international consequences only because it possesses more influence and receives the support of the United States, as one of its allies? [23] Has the self-defense principle—a concept created to address inter-state conflicts—become so outdated that it is now an enabler of violence, in a world dominated by intra-state conflicts and asymmetric warfare (conflict between a state and non-state actors)? The vague definition of “aggression” and sweeping concept of self-defense in international law appear to give powerful countries a license to justify conflicts under jus ad bellum, with little accountability for their actions during hostilities under jus in bello. Indeed, the ICJ has not established the parallels between force and aggression because of a lack of legal precedent, giving powerful countries another possible loophole to use force indiscreetly in the name of self-defense without being accused of aggression themselves. [24] These ambiguities necessitate a definitive legal response, particularly as Israelis and Palestinians navigate a world of ongoing, inconclusive conflicts and violence.
Thus, ICJ precedents such as Military and Paramilitary Activities expose the weaknesses in Israel’s self-defense claim to justify its actions in the recent Gaza conflict. The Court’s 1968 ruling for Nicaragua, indeed, reveals that the legitimate practice of self-defense cannot strip another state of its sovereignty and right to self-determination, as is arguably the case with Israel’s actions towards Palestinians in Gaza. Moreover, this analysis reveals the larger issues within the self-defense principle and jus ad bellum: that justifying a conflict under the vaguely-defined concept of “aggression” can come at the cost of upholding standards of conduct during a conflict, or jus in bello.
Edited by Zirui Chen
Sources:
[1] Israel-Gaza violence: The conflict explained, BBC, June 16, 2021, online at https://www.bbc.com/news/newsbeat-44124396.
[2] Hans-peter Gasser, “The Geneva Conventions and the Autonomous Territories in the Middle East,” 26 Security Dialogue 2, 177 (1995), http://www.jstor.org/stable/26296471.
[3] Id.
[4] Claus Kress, On the Principle of Non-Use of Force in Current International Law, Just Security (September 30, 2019), https://www.justsecurity.org/66372/on-the-principle-of-non-use-of-force-in-current-international-law/.
[4] Id.
[5] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgement, 1986 I.C.J. Reports 14, 190 (International Court of Justice June 27, 1986). Accessed August 17, 2021, https://www.icj-cij.org/public/files/case-related/70/070-19860627-JUD-01-00-EN.pdf.
[6] Id.
[7] Israel-Gaza violence, BBC.
[8] Oscar Schachter, “Self-Defense and the Rule of Law,” 83 The American Journal of International Law 2, 271 (1989), https://doi.org/10.2307/2202738.
[9] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgement, 1986 I.C.J. Reports 14 (International Court of Justice June 27, 1986). Accessed August 17, 2021. https://www.icj-cij.org/public/files/case-related/70/070-19860627-JUD-01-00-EN.pdf.
[10] Gasser, “The Geneva Conventions,” 173.
[11] Norman G. Finkelstein and Jamie Stern-Weiner, “Israel Has No Right of Self-Defense Against Gaza,” Jacobin (July 25, 2021), https://jacobinmag.com/2018/07/gaza-protests-israel-occupation-norman-finkelstein.
[12] Nor Aishah Hanifa and Badereddin Seyam, OPINION: Collapse of International Humanitarian Law in Israel-Palestine conflict, Yeni Şafak (April 26, 2021), online at https://www.yenisafak.com/en/world/opinion-collapse-of-international-humanitarian-law-in-israel-palestine-conflict-3570971.
[13] Id.
[14] Id.
[15] Kress, “On the Principle.”
[16] Dapo Akande and Antonios Tzanakopoulos, “The International Court of Justice and the Concept of Aggression: Lessons for the ICC?”, EJIL: Talk (July 3, 2015), https://www.ejiltalk.org/the-international-court-of-justice-and-the-concept-of-aggression-lessons-for-the-icc/.
[17] Hanifa and Seyam, “Collapse of International Humanitarian Law.”
[18] Jasmine Moussa, “Can jus ad bellum override jus in bello? Reaffirming the separation of the two bodies of law,” 90 International Review of the Red Cross 872, 26 (2008), https://www.corteidh.or.cr/tablas/R22753.pdf.
[19] Id.
[20] Christine Chinkin and Mary Kaldor, International Law and New Wars (Cambridge, UK: Cambridge University Press, 2017), 129, https://doi.org/10.1017/9781316759868.005.
[21] Id at 134.
[22] Renne De. Nevers, “Sovereignty and Ethical Argument in the Struggle against State Sponsors of Terrorism, " 6 Journal of Military Ethics 1, 9 (2007), https://www.law.upenn.edu/live/files/1521-renee-de-nevers.
[23] Id at 145.
[24] Akande and Tzanakopoulos, “The International Court.”