[R-G] Gaza: Not a war of self-defense

[Anthony Fenton]

Gaza: Not a war of self-defense
Victor Kattan
http://www.humanrights-geneva.info/Gaza-Not-a-war-of-self-defense,4031

19 January 09 - 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…

Victor Kattan/JURIST - The images speak for themselves. For two weeks  
the scenes of carnage, mutilated body parts, and dead children have  
haunted our television screens and appeared in pictures in newspapers  
and on the internet. Israel has used all the sophisticated military  
paraphernalia at its disposal to destroy Hamas. And Hamas has in turn  
continued to fire rockets into Israel. Since Israel launched its  
offensive in Gaza on 27 December 2008, 1,010 Palestinians and thirteen  
Israelis have been killed. Of the Israeli dead 10 have been soldiers  
and three are civilians. According to the Ministry of Health in Gaza,  
one third of the dead are children. Almost 5,000 Palestinians have  
been injured. We do not know the exact proportion of Hamas fighters  
amongst the figures for Palestinian dead. Israel is not allowing any  
foreign journalists to enter the Strip to independently verify the  
facts.

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 first— 
although 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.

Aggression

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 © 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.

Self-determination

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.