FAQ 1
Doesn’t Israel have the right to defend itself?
The allegation
Israel was the victim of an unprovoked attack on October 7th 2023. Any country suffering such an aggression has the right to defend itself, which is what Israel has been doing since in Gaza.
Brief rebuttal
There is no right of self-defence in international law against people you are illegally occupying. What happened on October 7th was shocking and no doubt war crimes were committed that day. But it cannot be regarded as an unprovoked attack on Israel; it was, rather, a response to decades of Israeli violence against the Palestinians of Gaza and the West Bank. All non-violent avenues for the achievement of the rights to which all peoples, including Palestinians, are entitled have been sealed shut by force. Violence begets violence. As UN Secretary-General António Guterres said, the Hamas attack on October 7th, however brutal, “did not happen in a vacuum”.
More detail
Two wrongs do not make a right. However wronged Israel felt on October 7th and however much any government has a duty to protect its citizens from harm, Israel cannot claim it has been acting since then in “self-defence”.
It is Israel’s consistent strategy of seizing Palestinian land and denying Palestinian rights that caused the conflict. Israel cannot claim to be “defending itself” in a conflict it brought about itself, one where people it has occupied and whose rights it has suppressed are rebelling against it.
The customary laws of war, from the Hague Conventions of 1907 to the Geneva Conventions of 1947 have established what sort of actions by states are beyond the pale. So has the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
The rules of conflict are clear: collective population punishment by starvation and indiscriminate slaughter are war crimes. These rules of war are not suspended for “defensive” military actions.
The Universal Declaration of Human Rights consists of 30 articles; Israel continues to deny the application of more than half of these to Palestinians, starting with the “right to life, liberty and security of person”. Since 1967 Israel has used its monopoly of violence to prevent or undermine all peaceful expression of the Palestinians’ national aspirations.
Under international law, the Palestinians have a lawful right to resist Israel’s occupation of their lands, including through armed struggle. In 1982, the UN General Assembly “reaffirmed the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle.”
Gaza has been under Israeli control since 1967. Its “withdrawal” in 2006 did not change this as it remained in effective control of all access into and out of Gaza. It continues to be recognised as an occupying power in international law. An occupying power does not have the “right to defend itself” by military force against those whose land it has occupied.
Israel’s indiscriminate slaughter of civilians, its use of starvation as a tactic, and the finding by the International Criminal Court (ICC) of a plausible genocidal intent, all trample over the international attempt to establish limits to the harm that conflict causes to civilians.
Since 1967 when Israel went to war, it has been in belligerent occupation of the occupied Palestinian territory. Israel as the occupying power has obligations to protect the people it is occupying. This includes those in Gaza, as reaffirmed by the July 2024 decision of the International Court of Justice (ICJ).
It has long been established that for any party’s claim to be going to war for self-defence to be legitimate it must prove that there was no other choice or means. And even if that can be established, as the ICJ confirmed in the Nicaragua case (1986): “self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it” (para. 176).
This statement sets out two important principles in international law concerning the use of force: the principle of proportionality and the principle of necessity. In this context, proportionality means that the response to an armed attack must be reflective of the scope, nature and gravity of the attack itself. On the other hand, the principle of necessity guards against the use of measures which are excessive and not necessary in response to an armed attack.
Further resources
1. Patrick Gathara, The fallacy of the colonial ‘right to self-defence’ Al Jazeera 16 May 2021
Gathara writes about the fallacy of colonialists claiming a right to self-defence, saying it is an “outrageous proposition that colonial states such as Israel have a right to defend themselves from those they oppress”.
“The idea that imperial land grabbers have the right to terrorise, brutalise, torture and murder those whose land they steal under the rubric of “self-defence” flies in the face of UN General Assembly Resolution 37/43 of 1982 which recognised “the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle”. That resolution specifically reaffirmed this right in the case of the Palestinian struggle.
2. Noura Erekat, Israel Does not Have Right to Self-Defense in International Law Against Occupied Palestinian Territory, Legal Agenda, 17 Jul 2014
Palestinian-American activist, university professor, legal scholar, writes:
“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 doing precisely that, Israel is asserting rights that may be consistent with colonial domination but simply do not exist under international law.”
3. Michael Lynk, Can International Law Prevail in Gaza and Israel?, Dawn, 13 Nov 2023
The author is the United Nations Special Rapporteur for human rights in the occupied Palestinian territory, from 2016 to 2022:
“Since the end of the Second World War, international law has created a comprehensive set of mandatory rules governing both the conduct of war and hostilities and the administration of military occupations. In sum: belligerents have substantial obligations to conduct war in a highly restricted fashion, and civilians have very broad rights to be protected against death and suffering…”
“However, the ability to impose accountability on an offending state or non-state actor is primarily a political act, as there is no comprehensive international judicial system comparable to domestic courts… since the origins of the question of Palestine, international law in Palestine has been much closer to power than to justice.”
4. United States Representative Alexandra Ocasio-Cortez said in July 2021:
“The [US] President has said that Israel has a right to defend itself. But do Palestinians have a right to survive? The US must acknowledge its role in the human rights violations of Palestinians. This isn’t about both sides. It’s about an imbalance of power.”
5. , Does Israel Have the Right to Defend Itself?, 29 Oct 2024