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Why the Self-Defense Doctrine Doesn’t Legitimize Israel’s Assault on Gaza
Supporting all aspects of the Israeli assault on Gaza in November, President Obama gave Israeli forces a green light, saying “We are fully supportive of Israel’s right to defend itself.” Israeli Prime Minister Netanyahu defended Israel’s targeting of civilian areas in Gaza saying “it’s our right to defend our people.”
Obama and Netenyahu disregarded law and facts:
* In 2004, the International Court of Justice rejected Israeli Government arguments and found that as an occupying power, Israel’s right to defend itself under a UN Charter provision does not apply against those living under its rule.
* The Court found that the right, and indeed the obligation, to protect citizens does not trump Israeli obligation to conform to international law when doing so.
* Israeli military assaults on Gaza, including “Operation Pillar of Defense,” caused a vast increase in rocket fire from Gaza, so the assaults endangered rather than defended Israeli citizens.
* Israeli political and military leaders have long known how to quickly halt or substantially dial down rocket fire that involves no bombs, no killing, and no destruction: ceasefire agreements. However, Israeli forces have repeatedly ended effective ceasefire agreements with aerial extrajudicial executions of Palestinians in Gaza that dialed up rocket fire.
Israeli Government argues self-defense
In its 2004 written advisory opinion regarding the wall that Israeli forces built across Palestinian occupied territory, the International Court of Justice included the Israeli government’s self-defense arguments:
* According to Israel “the construction of the Barrier is consistent with Article 51 of the Charter of the United Nations, its inherent right to self-defense and Security Council resolutions 1368 (2001) and 1373 (2001).”
* More specifically, Israel’s Permanent Representative to the United Nations asserted in the General Assembly on 20 October 2003 that “the fence is a measure wholly consistent with the right of States to self-defense enshrined in Article 51 of the Charter”; the Security Council resolutions referred to, he continued, “have clearly recognized the right of States to use force in self-defense against terrorist attacks,” and therefore surely recognize the right to use nonforcible measures to that end (A/ES10/PV.21, p. 6).
The Israeli government thus argued that self-defense under Article 51 of the UN Charter applies and that the wall should be considered as legitimate under this Charter self-defense provision– especially because the wall is a passive means of self-defense rather than a forcible measure. The Israeli government further implied that the two Security Council resolutions allow Israel’s right of self-defense against terrorism to trump the provision of international humanitarian law prohibiting Israel, as occupying power, to encroach on Palestinian territory.
International Court of Justice rejects Israeli self-defense
Rejecting the Israeli government arguments, the Court first found that the Article 51 right to self-defense “has no relevance” when the attacks on Israel, the occupying power, are from people living under Israeli rule rather than coming from a foreign state. The Court found:
Article 51 of the Charter thus recognizes the existence of an inherent right of self-defense in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. . . Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.
The Court thus concluded that self-defense under Article 51 does not apply to an occupying power with respect to those living under occupation. Although Israel withdrew its illegal settlers from Gaza in 2005, Israel still controls all aspects of life in Gaza, including air, land and sea borders, and therefore Israel continues to be regarded as an occupying power over Gaza.
The decision that an occupying power cannot invoke Article 51 self-defense is complementary to provisions of the UN Charter, UN General Assembly Resolution 2625, and the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights under which self-determination is a principle of international law.
More specifically, the decision is complementary to UN General Assembly Resolution 2649, adopted November 30, 1970, that “affirms 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 themselves that right by any means at their disposal.” Resolution 2649 also “considers that the acquisition and retention of territory in contravention of the right of the people of that territory to self-determination is inadmissible and a gross violation of the Charter;” and “condemns those Governments that deny the right to self-determination of peoples recognized as being entitled to it, especially of the peoples of southern Africa and Palestine.”
The rejection of Israel’s Article 51 argument leaves Israeli forces and their US sponsors at risk of prosecution for the crime of aggression, the subject of another article.
Court Rejects Israeli argument that self-defense trumps international law
The Court also concluded that construction of the wall on occupied Palestinian land was not in conformance with applicable international law because the route of the wall across Palestinian territory was illegal. “The Court considers that Israel cannot rely on a right of self-defense or on a state of necessity in order to preclude the wrongfulness of the construction of the wall.” Thus, the Court established that defending its citizens does not relieve Israeli government officials of their responsibility to observe international law.
International law for an occupying power includes the responsibility to protect civilians living under occupation and their property and to provide for the humanitarian needs of the population living under the occupation. International humanitarian law requires all combatants to protect civilians and civilian property during any armed conflict.
Court recognizes Israeli right to protect citizens if method conforms to international law
The Court recognized that “Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law.”
Israeli argument before the court can be applied in reverse
The argument the Israeli permanent representative introduced is remarkable in that it can be applied in reverse in view of the Court’s decision: the Court rejected an occupying power’s right to use a non-forcible measure–the fence–in self-defense because the fence illegally encroached on occupied territory. Therefore, the Court would surely reject forcible measures that violate the law.
The Israeli assaults on Gaza
During Israel’s “Operation Cast Lead” from December 27, 2008 to January 18, 2009, Israeli military and political leaders failed to take heed of the decision of the International Court, as described in a report issued by a delegation from the National Lawyers Guild, and reports issued by Human Rights Watch, the Palestine Center for Human rights, Amnesty International, the UN Human Rights Council–“the Goldstone Report,” Defence for Children International (Palestine Section), Al Mezan Centre for Human Rights, and the League of Arab States, all available at Universal Jurisdiction. Instead, Israeli political and military leaders–and their US sponsors–wrongfully continued to rely on Israel’s supposed right to protect its own citizens as justifying measures, such as intentionally attacking civilians and civilian property, that violate international law.
Israel’s “Pillar of Defense” November 14-21 failed to heed both the decision of the Court and the law as described in those reports, as described in articles on Counterpunch, “Wrecking Gaza: Civilian Infrastructure Targeted by Israeli Military” and “Shattered Lives in Gaza: How the IDF Targeted Civilians.”
Reports by Human Rights Watch also describe Israeli violations during Operation Pillar of Defense, including “Gaza: Unlawful Israeli Attacks on Palestinian Media” and “Gaza: Israeli Airstrike on Home Unlawful.” An HRW report on November 15 warned both sides, “Gaza: Avoid Harm to Civilians.”
A December 24 report by Human Rights Watch, “Gaza: Palestinian Rockets Unlawfully Targeted Israeli Civilians” sharply criticizes Palestinian resistance groups that fired rockets at Israeli population centers:
Under international humanitarian law, or the laws of war, civilians and civilian structures may not be subject to deliberate attacks or attacks that do not discriminate between civilians and military targets. Anyone who commits serious laws-of-war violations intentionally or recklessly is responsible for war crimes. . .
The November 14 to 21 hostilities between Israel and Hamas and armed groups in Gaza involved unlawful attacks on civilians by both sides.
As will be further described in a forthcoming article, data on the Israeli Ministry of Foreign Affairs web site, on the allied Intelligence and Terrorism Information Center (ITIC) web site, and on the Palestine Center for Human Rights web site shows that Israeli forces have levers of control over rocket fire from Gaza. Data on the web sites shows that Israeli extra-judicial executions in Gaza dialed up rocket attacks on Israel to extremely high levels. The data also shows that Israeli government and military leaders dialed down rocket attacks to zero, or very close to zero, by using a readily available non-violent technique: a cease fire agreement.
Israeli political and military leaders who set the policy, those carrying out the attacks, and US government and corporate sponsors who provided the weapons and political backing are all liable for prosecution for war crimes because of their unlawful attacks on civilians and civilian property. The decision of the International Court of Justice on the wall indicates that liability for war crimes would not be precluded even if Israeli forces could prove they were acting to defend Israeli citizens. Similarly for the crime of aggression: particularly when Israeli forces violated effective ceasefires and initiated the military conflicts with their extra-judicial executions in Gaza. Claims that Israeli forces acted to protect their own citizens will have “no relevance” under Article 51.
Investigation and prosecution
With its upgrade in status to non-member state at the UN on November 29, Palestine can now bring its case against Israeli and US political and military leaders to the International Criminal Court (ICC) at the Hague. The International Criminal Court has jurisdiction to investigate and prosecute those responsible for genocide, crimes against humanity, war crimes, and the crime of aggression. If the prosecutor of the ICC refuses the request to investigate, the Palestinian Authority can bring a proposal to the UN General Assembly to establish an International Criminal Tribunal for Israel as a ‘subsidiary organ,’ as provided under U.N. Charter Article 22 to conduct the investigation and prosecution.
The Palestinian Authority has been under intense pressure not to bring the case. Or to use the possibility of bringing a case at the ICC as a bargaining chip for other objectives, such as an agreement to halt illegal Israeli settlement building. However, pressure on Palestine not to bring a case and Palestine holding the possibility of criminal prosecution as a bargaining chip both threaten foundational principles of justice: respect for the rule of law, equal justice under law, and judicial independence. Rather pressure and bargaining are consistent with corruption and a culture of impunity for wrongdoers with powerful friends.
A worldwide campaign for justice is needed. The system of immunity and impunity enjoyed by Israeli political and military leaders and by their US government sponsors must end now. Without accountability for violations of international law, the law will become mere recommendation, the violations will be repeated, hundreds more Palestinians will be killed and wounded, more of their homes will be destroyed, rocket fire will be dialed up, and we will hear again about “Israel’s right to defend itself” while Israeli forces cynically take actions that put Israeli citizens more at risk for political goals. Only if those responsible are brought to justice can we expect that military and political leaders in Israel and the US would be inclined to think seriously before again initiating aggression while pleading self-defense. Public pressure is needed to ensure that the criminal cases are brought at the ICC–or, if the ICC refuses, to an Article 22 Tribunal–and to counter the vast US political influence to undermine an independent, impartial, and unbiased investigation and prosecution.
James Marc Leas is a co-chair of the National Lawyers Guild Free Palestine Subcommittee. He collected evidence in the Gaza strip from November 27 to December 3 as part of a 20 member delegation from the US and Europe. He also participated in the National Lawyers Guild delegation to Gaza after Operation Cast Lead.