Does Israel have the 'right to self-defence' under international law in its war on Gaza?

Israel and the US have both argued that the brutal four-week bombardment of Gaza is justified under international law, according to the pretext of "self-defence".

With more than 10,000 Palestinians killed - the vast majority children and women - in Israel's one-month war on Gaza, the phrase "Israel has the right to defend itself" has been commonly deployed by US and EU officials, and even by the UN secretary general.

Last Friday, US Secretary of State Antony Blinken pushed this "right" to its extreme following a meeting with Israeli President Isaac Herzog, saying, "Israel not only has the right but also the duty to defend itself."

Arab states, human rights organisations, and international legal scholars - including the International Court of Justice and the International Criminal Court - disagree, calling for an immediate ceasefire to end further civilian suffering.

What is the 'right to self-defence' in international law?

The right to self-defence is linked to two articles in the UN Charter.

Article 2(4) of the UN Charter states: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations."

The second is Article 51 of the UN Charter, which more explicitly defines "self-defence": "Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.

"Measures taken by members in exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

Other than the UN Charter, the other key factor in defining the use of self-defence in international law is under customary international law, which is basically "general practices accepted as law". This generally refers to an act or position agreed upon by governments as acceptable and therefore becomes de-facto and articulated in government documents, military manuals, state treaties, public announcements, etc.

The International Court of Justice concurs https://t.co/5oLskLCYf7 pic.twitter.com/QH4p4Znixf

— Sam Halpert (@samhalpert) November 6, 2023

Can Israel invoke Article 51 of the UN Charter?

Israel and its supporters, including the US, argue that it has "the right of self-defence" under Article 51 of the UN Charter.

Indeed, as of 21 October, Washington proposed a draft text to the UN Security Council that explicitly asserted "Israel's right to self-defence" after being reportedly disappointed that Brazil's previous text did not include this assertion.

The underlying point of both Israel and the US's interpretation hinged on the argument that Israel is not an occupying state, particularly regarding the Gaza Strip.

To bolster this argument, both parties point to the 2005 "disengagement plan" by Israel from the Gaza Strip that saw it withdraw its physical military presence and illegal settlements from the Palestinian enclave and, hence, according to their argument, could not be considered in "occupation" of Gaza.

This interpretation is disputed by virtually all of the prominent international institutions, organisations and bodies such as the International Committee of the Red Cross (ICRC), the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory, UN General Assembly (UNGA), European Union (EU), African Union, International Criminal Court (ICC), Amnesty International, and Human Rights Watch.

International legal experts also assert that Israel has illegally occupied Palestinian territories, including Gaza, since 1967.

An "occupation" is defined under Article 42 of the Fourth Hague Conventions, as: "Territory is considered occupied when it is placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised."

Even though Israel is not a party to the Fourth Hague Conventions, it is considered part of customary international law and thus still binding on Israel.

While Israel, before its ground invasion of Gaza, did not have a physical military presence in Gaza, to quote the Geneva Academy of International Humanitarian Law and Human Rights it still "retained effective control over the Gaza Strip by virtue of the control exercised over, inter alia, its airspace and territorial waters, land crossings at the borders, supply of civilian infrastructure, and key governmental functions such as the management of the Palestinian population registry". In other words, an occupation of Gaza.

Moreover, a year before the "disengagement plan", the International Court of Justice (ICJ) released a significant ruling concerning the construction of Israel's "Apartheid Wall" in the occupied West Bank. In a vote of 14 for and one opposed, the ruling explicitly states: "The Court considers that Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall."

Several international legal experts, including the UN Special Rapporteur of the occupied Palestinian territories (oPt), have used this ruling to counter Israel's actions against "threats" coming from the West Bank and Gaza, and those powers supporting Israel's "self-defence" argument.   

ON ISRAEL's #SelfDefense

1/Under Int'l Law Israel's actions in Gaza cannot qualify as self-defense
(see thread 👇)

I commend legal scholars as @ArdiImseis, who powerfully challenge "Israel's self-defense" narrative (watch video): https://t.co/QJF0YO8qcR

— Francesca Albanese, UN Special Rapporteur oPt (@FranceskAlbs) November 4, 2023

If Israel doesn't have the "right to self-defence" in accordance with international law, why are certain states asserting this?

International law – as interpreted by the vast majority - does not give Israel the "right to self-defence" against Palestinians in the occupied West Bank and Gaza Strip because it is an occupying state and, therefore, governed by international laws and conventions related to occupation, such as the Fourth Geneva Convention.

Nevertheless, Israel's backers, particularly the US, seek to essentially reinterpret the international texts, particularly Article 51, via customary international law to give it more room for military action and less accountability.