JURIST Guest Columnist Victor Kattan of the Centre for International Studies and Diplomacy, School of Oriental and African Studies, University of London, says that Israel's Gaza offensive cannot be legally justified by any right of self-defense and instead constitutes aggression and a forcible deprivation of the Palestinian people's right to self-determination...
In resolution 1860, the UN Security Council stressed the urgency of the situation and called for "an immediate, durable and fully respected ceasefire, leading to the full withdrawal of Israeli forces from Gaza." The resolution has been ignored by both sides and Israeli troops are reported to have entered Gaza City. But was this war necessary? And is it lawful?
On the very morning Israel launched its offensive in Gaza, the day it killed 225 Palestinians, Gabriela Shalev, its UN Ambassador, sent a letter to the UN Secretary-General announcing that "after a long period of utmost restraint, the Government of Israel has decided to exercise, as of this morning, its right to self-defence." Two weeks into the conflict, the US House of Representatives passed a non-binding resolution "recognizing Israel's right to defend itself against attacks from Gaza" by a majority of 390-5. On 6 January, when an Israeli tank shell killed 40 Palestinians at a UN school, Australia's Prime Minister Kevin Rudd said: "Australia recognizes Israel's right to self-defence." And in his last press conference at the White House, President George W. Bush said that Israel had the right to defend itself, but should be mindful of "innocent folks."
It may therefore come as a surprise to some that, despite these statements, many international lawyers argue that Israel cannot rely on the right of self-defence to justify its actions in Gaza. In a letter published in the Sunday Times Israel's plea of self-defence was rejected by over two dozen international lawyers. They argued that Israel's actions in the Gaza Strip amount to aggression, not self-defence.
Self-defence: what is an armed attack?
Article 51 of the UN Charter provides that UN members have the inherent right of individual or collective self-defence if an armed attack occurs. The question then is, what is an armed attack?
To the non-specialist, the word "armed attack" might signify any attack. But under international law the issue is not so straightforward. If, for example, it were the case that a single shot fired across a border amounted to an armed attack for the purposes of Article 51 of the UN Charter then states could invoke their "inherent" right to self-defence and go to war. This could cause endless instability in international affairs. It could also lead to accidental wars. One has only to think of the tensions between India and Pakistan, China and Taiwan, North and South Korea, Greece and Turkey, Russia and Georgia to realise the danger. Moreover, if the threshold for an armed attack is low then states could effectively manufacture a war. All they would need to do is provoke a border incident, allege that they had been attacked first, and then send in the troops.
In the Nicaragua case the International Court of Justice drew a distinction between the "scale and effects" of a particular military operation that could be classified as an armed attack as opposed to "a mere frontier incident." An armed attack carried out by "armed bands, groups, irregulars or mercenaries" the Court said, would have to be "of such gravity as to amount to an actual armed attack conducted by regular forces." The Court's jurisprudence in Nicaragua was upheld in the case concerning Oil Platforms where it said that in ascertaining whether an armed attack had taken place it was necessary to distinguish "the most grave forms of the use of force from other less grave forms." Even cumulative attacks, the Court said, might not necessarily amount to an armed attack for the purposes of Article 51 of the UN Charter.
As regards the Israel-Palestine conflict we are not dealing with a single shot fired across a border. We are faced with a decades-old territorial dispute. Assuming that the right of self-defence for the purpose of Article 51 of the UN Charter can apply to attacks initiated by non-state actors like Hamas, are the rockets fired by its military wing into southern Israel of such a "scale and effect" that they amount to an armed attack as opposed to a border incident? And are they of "such gravity" that they amount to an armed attack conducted by a regular army? If so, how is one to quantify rockets attacks for the purposes of an armed attack? By the numbers fired? Or by the number of deaths they cause? Does a rocket fired into an open field or into an empty building amount to an armed attack? What if it causes damage or injures or kills someone?
Whilst it would not be possible or even desirable to quantify precisely what amounts to an armed attack, as it will depend on the individual facts of each case, the deaths of a dozen civilians, over a one-year period, deplorable as that is, would probably not qualify as an armed attack for the purposes of Article 51 of the UN Charter. Moreover, one cannot ignore the conduct of Israel's armed forces in the occupied territories and examine the Hamas rocket attacks in isolation. After all, there are two parties to this conflict. In the three years after Israel's redeployment from Gaza, 11 Israelis were killed by rocket fire. And yet between 12 September 2005, the day Israel completed its "disengagement" from Gaza, and the 27 December 2008, the day Israel launched its air strikes, the Israeli army had killed approximately 1,250 Palestinians in Gaza according to data collected by the United Nations Organization for the Coordination of Humanitarian Affairs.
According to a fact sheet produced by the Israeli consulate in New York City, after the ceasefire began in June 2008, the rate of rocket and mortar fire from Gaza dropped to almost zero, and stayed there for four straight months. As Nancy Kanwisher, Johannes Haushofer and Anat Biletzki point out in the Huffington Post, the ceasefire ended on 4 November 2008 "when Israel first killed Palestinians, and Palestinians then fired rockets into Israel." For the purposes of the law of self-defence, however, it is not always a question of who attacks firstâalthough Article 2 of the UN General Assembly's 1974 Definition of Aggression stipulates that: "The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression." As Professor Yoram Dinstein of Tel Aviv University argues in his book War, Aggression and Self-Defence (Cambridge University Press 2005) p. 191, it "is not who fired the first shot but who embarked upon an apparently irreversible course of action, thereby crossing the legal Rubicon. The casting of the die, rather than the actual opening of fire, is what starts the armed attack." But without doubt, it was Israel's 27 December attack on Gaza, the biggest air assault on the Strip since 1967, that, to use Dinstein's phrase, constituted the crossing of the "legal Rubicon." Although, according to the Israeli Government, Hamas had fired hundreds of rockets into southern Israel in the week prior to its 27 December attack, only one Israeli civilian had been killed by a rocket in his apartment building in Netivot. Importantly, these rockets were fired as retaliatory action for the 4 November 2008 assassinations carried out by Israel in Gaza.
Proportionality: the bigger picture
Of course one could argue that Israel cannot invoke self-defence because its response was not necessary or proportionate and not because the rocket attacks fired by Hamas do not amount to an armed attack. In its Nuclear Weapons advisory opinion the International Court of Justice stipulated that "a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law." In other words, any use of force in self-defence to repel an armed attack must be necessary, proportionate, and in conformity with international humanitarian law.
In any assessment of proportionality one must take into account all the facts of a particular claim of self-defence. An attack cannot be examined in isolation to the incidents which were alleged to have provoked it. This was the approach to proportionality adopted by the International Court of Justice in the Oil Platforms case. In assessing the proportionality of an Iranian attack, the Court said it could not "assess in isolation the proportionality of that action to the attack to which it was said to be a response; it cannot close its eyes to the scale of the whole operation."
In other words, when assessing Israel's claim to self-defence and related questions of proportionality one must be mindful of the deaths caused by Israel's own actions in the Gaza Strip prior to the escalation of hostilities. Even during the so-called "ceasefire" Israel assassinated Palestinians in Gaza such as its attack on 4 November which killed six people. It also blockaded Gaza for 18 months prior to its 27 December assault on the Strip. In any assessment of proportionality one cannot ignore the sheer scale of Palestinian dead in the three years prior to Israel's 27 December assault which included 222 children. Nor can one ignore the number of civilians killed during the current hostilities. Is the death of one Israeli civilian in the week prior to Israel's air assault proportionate to the deaths of over 1,000 Palestinians?
Occupied territory and belligerent occupation
Although Israel relocated its troops from Gaza in August-September 2005, many international lawyers, such as Professor Iain Scobbie of the School of Oriental and African Studies, have argued that the Gaza Strip remains occupied territory under international law. (See Iain Scobbie, "An Intimate Disengagement: Israel's Withdrawal from Gaza, the Law of Occupation and of Self-Determination" in Victor Kattan (ed.), The Palestine Question in International Law (London: British Institute of International and Comparative Law, 2008), p. 637). This is because Israel controls all of Gaza's entry and exit points, its airspace, its territorial waters, and population registry. The capacity of the Israeli army to invade the Gaza Strip at its time and choosing, to block humanitarian access, to close the border crossings at will, to control the supply of food, fuel and electricity, as well as its ability to bar all foreign correspondents from entering the Strip which it had enforced prior to the latest conflagration, all point to the conclusion that Gaza has always been under effective Israeli control. As the preamble to UN Security Council resolution 1860 stresses: "the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state."
According to the Chatham House Principles of International Law on the Use of Force in Self-Defence, an armed attack is an attack directed from outside the territory controlled by the state. Recalling the International Court of Justice's advisory opinion in Wall, the authors of these Principles noted that "unless an attack is directed from outside territory under the control of the defending State, the question of self-defence in the sense of Article 51 does not normally arise." Thus, in principle, a state cannot invoke self-defence in relation to an attack which originates within territory it occupies.
It is important to note that not all defensive measures are measures taken in self-defence under Article 51 of the UN Charter. This is because self-defence is an exculpatory plea regarding resort to force in the first place, and not for an offensive taken during an armed conflict. In the Targeted Killings case, Judge Barak accepted that the Israel-Palestine conflict is an international armed conflict where the laws of belligerent occupation are applicable. Under the law of belligerent occupation the appropriate legal framework is the jus in bello and not the jus ad bellum. Self-defence under Article 51 of the UN Charter is only relevant to the jus ad bellum.
Under the law of belligerent occupation Israel could use the justification of belligerent reprisals to justify pin-point attacks against Hamas. But the sheer scale of Operation Cast Lead goes well beyond the proportionality requirement inherent in the law of belligerent reprisals. Most importantly, the law of armed conflict prohibits belligerent reprisals against civilians, civilian populations and certain civilian objects. This is confirmed in Articles 51, paragraph 6 and Article 54, paragraph 4 of the Additional Protocol I to the Geneva Conventions of 1949. It also goes beyond the proportionality requirement in the law of self-defence. This is because in the Caroline formulation, the test of proportionality was stated to require "nothing unreasonable or excessive, since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it."
Under the law of belligerent occupation Israel has the duty to ensure law and order in the occupied territory. Article 43 of the Hague Regulations respecting the Laws and Customs of War on Land of 1907 provides that the Occupying Power "shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." Article 64 of the Fourth Geneva Convention of 1949 further provides that the Occupying Power may subject the population of the occupied territory to provisions which are essential to enable it to fulfill its functions, to maintain orderly government, and to ensure its security. Because Israel has failed to fulfill these obligations, it allowed the situation to develop where Hamas could prepare and launch offensives against southern Israel. The deaths, injuries and damage caused by Operation Cast Lead is retribution inflicted on Gaza as a response to activities which Israel had the responsibility to prevent.
So if Israel's actions do not amount to self-defence then what is it? The answer must be that it is an act of aggression, which the International Military Tribunal at Nuremberg referred to as "the supreme international crime." When a state uses massive force, such as bombardment, blocking access to ports, and a ground invasion which has not been authorized by the Security Council of the United Nations, and cannot be justified under any other ground such as self-defence or "humanitarian intervention" then there is a prima facie case that its actions amount to aggression.
Article 1 of the UN Definition of Aggression annexed to General Assembly resolution 3314 (XXIX) of 1974 provides that: "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition." One of the purposes of the UN according to Article 1 (2) UN Charter is "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace." To this end Article 1 of the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations provides that: "Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence."
Under Article 3 (c) of the Definition of Aggression, any blockade is an act of aggression. The Gaza Strip had been subject to a blockade prior to Israel's attack on 27 December for almost 18 months. In the Nicaragua case, the International Court of Justice recognised the Definition of Aggression as a source of international law. According to 3 (a) of the Definition of Aggression "any military occupation, however temporary, resulting from such invasion or attack" is an act of aggression. It is not necessary for the occupied territory to belong to another state. Therefore, even if one took the view that Gaza is no longer occupied territory, which happens to be the perspective of the present Israeli Government, then the military occupation that has arisen as a result of the current hostilities could still qualify as an act of aggression. Otherwise, Israel's four-decade long occupation of the West Bank and the Gaza Strip and its annexation of East Jerusalem and the Golan Heights amount to a continuing act of aggression.
By attacking Gaza, and maintaining an occupation that has lasted for almost 42 years, Israel is forcibly depriving the Palestinian people from exercising their right of self-determination. As an aspect of that right the Palestinian people must be allowed to freely determine their political status and freely pursue their economic, social and cultural development. They have a right to choose their own form of government. It is not for Israel to determine the political leadership of the Palestinian people.
In 1970, the UN General Assembly in resolution 2649 (XXV) affirmed "the legitimacy of the struggle of peoples under colonial and alien domination recognized as being entitled to the right of self-determination to restore to them that right by any means at their disposal."
Article 7 of the Definition of Aggression provides that none of the acts enumerated in Article 3 "could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right." They have the right to struggle to that end and to seek and receive support from the international community. In this connection, Article 1 (4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts provides that it applies to "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations."
This conflict can only be solved by diplomacy. The use of force must always be a last resort. The rockets fired by Hamas into Israel in retaliation for the 4 November assassination of six Palestinians was not an armed attack of "such gravity" that, in the words of the Caroline formulation, was "instant, overwhelming, leaving no choice of means, and no moment for deliberation." And even if one was to argue that the Hamas rocket attacks did amount to an armed attack, that Gaza is not occupied territory, and therefore that the law of belligerent occupation is not applicable, Israel's bombardment and re-invasion of the Strip is grossly disproportionate. Israel could have negotiated with Hamas instead of deliberating isolating and denigrating them, and lobbying other states to collectively boycott the people of Gaza for exercising their democrat right to chose their own form of government in what must amount to one of the most cynical and depressing sanctions in modern history. As a member of the United Nations, Israel is required to settle its "international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered." One day, someone is going to have to talk to Hamas. The movement is still going to be around long after this war is over.
Victor Kattan teaches international law to students of diplomacy at the School of Oriental and African Studies at the University of London. He is also the author of two books on Palestine.