In the days after Hamas’s brutal attack on Oct. 7, U.S. Senate Majority Leader Chuck Schumer stood on the Senate floor and made a remarkable statement.
“Hamas would do to the Jewish people in the rest of Israel what they did to the people along the Gaza border,” he said. “Israel therefore not only has the right but also the obligation to defend itself and its people, to eliminate the threat of Hamas.”
Even as the civilian death toll in Gaza has skyrocketed day by day, governments from the Biden administration to the EU have endlessly invoked Israel’s inherent right to self-defense, as defined in Article 51 of the U.N. Charter.
But many experts on international law challenge this claim, arguing that Israel’s aggressive and disproportionate methods do not fall within the purview of self-defense under international law. Nor, they say, does Israel even have a right to self-defense against threats from Gaza.
“Israel was not attacked on Oct. 7 by another state,” says Michael Lynk, former U.N. special rapporteur for the human rights situation in the Palestinian Territories occupied since 1967. “It doesn’t regard Palestine as a state, and it continues to occupy Palestine. So it was an occupying power attacked by armed forces coming from the occupied territory on Israeli soil.”
In the case of the Russia-Ukraine conflict, where both countries are autonomous states, experts agree Russia’s invasion activated Ukraine’s right to self-defense under Article 51. The same does not apply to Israel and its occupied territories, they say.
“We’re looking at what happened on Oct. 7 not as an Article 51 matter, but as warfare being conducted under occupation,” Lynk tells Analyst News.
Understanding the right to self-defense
One year prior to the attack, in October 2022, the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory concluded that the Israeli occupation of Palestinian territories was illegal under international law “due to its permanence and the Israeli government’s de-facto annexation policies.”
Since Israel has continued to illegally occupy the Palestinian territories, including the Gaza Strip, the latter cannot be recognized as an independent state, experts say.
Were Israel and Gaza two separate and equally autonomous states, Israel would be able to invoke Article 51 of the U.N. Charter, which states that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”
However, Francesca Albanese, the current U.N. special rapporteur on human rights in the occupied Palestinian territories, has clarified that Israel does not meet the conditions of self-defense in its military operation in Gaza.
“The right to self-defense can be invoked when the state is threatened by another state. Israel cannot claim the right of self-defense against a threat that emanates from a territory it occupies — from a territory kept under belligerent occupation.”
“The right to self-defense can be invoked when the state is threatened by another state, which is not the case,” said Albanese during a Nov. 14 address to the Australian Press Club. “Israel does not claim it has been threatened by another state. It has been threatened by an armed group within an occupied territory. It cannot claim the right of self-defense against a threat that emanates from a territory it occupies — from a territory kept under belligerent occupation.”
Lynk tells Analyst News that any legal analysis must begin from the fact that Israel is the occupying power, and has been since 1967. Though Israel withdrew its forces from Gaza in 2005 and no longer has boots on the ground, it maintains control of land, air and sea, and the U.N. and the international community continue to regard Israel as the occupying power of Gaza.
In 2004, the International Court of Justice established, in a case relating to Israel and the West Bank, that a state like Israel that is in belligerent occupation is not in the same position as a state that is attacked by another state.
That means Israel does not, in fact, have a right to defend itself under Article 51 of the U.N. Charter, says John Quigley, emeritus professor of international law at Ohio State University. Instead, it falls within the law relating to a belligerent occupation and to actions taken by a military force within the occupied population.
“That puts a much greater burden on Israel to protect the population,” Quigley says. Under the Fourth Geneva Convention, which decrees that occupied people are “protected persons,” the occupying state has an obligation to protect this population.
“So while it can, yes, take measures aimed at suppressing the resistance — even though that resistance is lawful — it has to do so taking into account its obligation to protect,” he says. (The General Assembly of the U.N.’s Resolution 37/43 allows for occupied people to resist occupation while obeying the laws of warfare, meaning that targeting or recklessly endangering civilians renders resistance illegal.) “So if it bombs indiscriminately, it is violating that obligation.”
The bounds of international law
Although Israel can consider attacks on its civilians as terrorism, experts explain, the lawful response to terrorism is not military action. As legal scholar Noura Erakat, an associate professor of criminal law at Rutgers University, writes in a 2012 analysis, “A state cannot simultaneously exercise control over territory it occupies and militarily attack that territory on the claim that it is ‘foreign’ and poses an exogenous national security threat.”
In her 2019 book Justice for Some, Erakat writes that international law regards terrorism as a criminal issue of domestic concern. Criminal suspects, such as the Hamas members behind the Oct. 7 attack, are entitled to a proper trial and can only be punished after a guilty verdict. That makes Israel’s indiscriminate killing of Palestinians civilians and all those suspected of terrorism an extralegal response in violation of the law.
“Since the occupied population does not have the means to protect or police itself, the occupying power must limit its force to law enforcement,” Erakat writes. “It cannot wage war or invoke self-defense against a population over whom it exercises effective control, and can use lethal violence only as a measure of last resort.”
Even as an illegal occupying power, Israel is legally obligated to conduct its occupation in accordance with the Fourth Geneva Convention and international humanitarian law. As an occupying power, it has a “policing” duty to maintain public order and try to act in the best interest of the people under occupation, under international humanitarian law based on the Hague regulations of 1907.
“In the public mind, the statement ‘Israel has a right to defend itself’ has been taken to mean that it can do whatever it wants. That is not accurate. The right to defend does not mean the right to defend by any means.”
Whether acting under Article 51 in self-defense, as Ukraine would be against Russia, or operating in the framework of an occupying power maintaining public order, Israel is obligated to strictly obey the rules of war in how it conducts its response to the Oct. 7 attacks.
“Ukraine, even though it’s defending itself on Article 51, it couldn’t go and, say, drop bombs on civilian areas in Moscow or St. Petersburg and kill either deliberately or recklessly risk civilians,” Lynk explains.
In effect, he notes, the rules of war Israel would have to obey would be the same whether it was legitimately under Article 51, as Ukraine is, or if it were responding as an occupying power to an attack on its civilians. The response would need to be “proportional” under international humanitarian law; it must use the concept of “distinction” to clearly differentiate between treatment of combatants and civilians; it must use the “precautionary” rule to minimize civilian harm during its attacks.
Despite the legal frameworks which govern it, human rights organizations say Israel continues to act with impunity. Since Oct. 7, Israel has targeted hospitals, schools, refugee camps and holy sites. A growing number of experts have identified the brutal aggression against Gaza as a genocide, with many fearing Israel is using the pretext of self-defense and counterterrorism as a strategy for ethnic cleansing and annexation.
“In the public mind, the statement that ‘Israel has a right to defend itself’ has been taken to mean that it can do whatever it wants,” Quigley says. “That is not accurate. The right to defend does not mean the right to defend by any means.”