‘Israel’s right to defend itself’ appears to be the key argument Israel is laying out for its use of force it is applying on Palestinians, especially in its current military offensive against Gaza. The principle of self-defence has thus been subsequently picked up by largely Western governments supportive of Israel, explaining their rejection of or abstention from calls for a ceasefire. In this context, opposition to the war often takes the form of demanding the faithful application of international humanitarian law (IHL) during the exercise of this right. This is anything but an anodyne move, as the political mainstream within the West seems unwilling to even rhetorically confirm, let alone demand in practice, the application of the most elementary rules of IHL when it comes to Palestine. Nevertheless, this indispensable attention to jus in bello cannot come at the expense of jus ad bellum. In fact, we argue that Palestinian life and self-determination will always be undermined if the profound material asymmetry of this conflict is accompanied by a legal one, namely the presumption that Israel has a prima facie right to engage in prolonged warfare to ensure its rights and interests, even to the extent of applying genocidal violence, while Palestinians are left without rights..
We are not the first ones to raise concerns about jus ad bellum both in general and over the past few weeks. For example, Ralph Wilde has relied on the jurisprudence of the ICJ (2004) to argue that no right of self-defence exists between an occupier and the territories that they occupy. Indeed, the ICJ in its Advisory Opinion on the Wall concluded that “Article 51 has no relevance on this case” as the threat originates from within the occupied territory not from outside. In addition, Adil Haque has reminded us that the use of force in self-defence needs to be proportionate and, therefore, the frightening loss of civilian life and destruction of civilian infrastructure in Gaza, including schools, hospitals, university buildings and places of worship, renders Israel’s military campaign unlawful.
In this short post, we focus on a distinct but interrelated question, namely whether Israel’s use of force against Gaza could be described as self-defence at all. Our answer is in the negative. One preliminary comment is necessary: recently Marko Milanovic raised the question whether the prohibition of the use of force is applicable at all in the relationship between Gaza and Israel. The question refers to the view that if Palestine is not a state with Gaza as part of its territory, the prohibition of the use of force would not apply to Gaza. We come to this question as critical legal scholars who do not wish to romanticise the concept of statehood in international law. Following the lead of Palestinian scholar Noura Erakat, we are critical of the “sovereignty trap”, assigning statehood to an occupied and annexed territory, and make it perform as if it was formally equal, thereby obscuring its domination and perpetuating forms of subordinated, lesser sovereignty. At the same time, the majority of the world’s states recognise Palestine as a state and Gaza as part of its territory. In addition, Palestine enjoys the status of observer state in the United Nations and has acceded to the Rome Statute as a state party. More broadly, though, Art. 2(4) frames this prohibition in broad terms prohibiting the use of force in states ‘international relations’, without express reference to the category of the state. Even the most openly annexationist factions of Israel’s political class do not claim that Gaza is part of Israel’s territory and, therefore, the relationship between the two is an international one. As a result, the prohibition on the use of force is engaged and, in the absence of authorisation by the UN Security Council, the only possibility for lawful use of force is if Israel is exercising its right to self-defence according to Article 51 of the UN Charter.
Unfortunately, after more than 20 years of the ‘war on terror’ and the arguments that justified it, this discussion takes place in a distorted argumentative terrain. As Mary Ellen O’Connell has noted, comparisons between the 7th of October and 9/11 abound, but the conclusions reached seem to consistently miss the point. For example, most doctrinal debates about the US invasion of Afghanistan focused on whether an attack by a non-state actor can be classified as an ‘armed attack’ for the purposes for Art. 51. What this discussion ignored was whether the invasion, which commenced almost a month after the attacks, could be classified as a necessary act of self-defence to begin with. Put simply, even if an armed attack has occurred, this only authorises the attacked state to use force in order to bring this attack to a swift end. Otherwise put, the relationship created between an armed attack and the use of force by Art. 51 is not only temporal but also causal. Even though disagreements might exist about the details, some rational relationship between using force and bringing the armed attack to an end needs to exist for this use of force to be a necessary use of force in exercise of the right to self-defence. Otherwise, what we witness is armed reprisals, vengeance, or, even more ominously, an effort to ethnically cleanse parts of Palestine (West Bank, East Jerusalem) and commit genocide in others (Gaza) using the atrocities of the 7th of October as nothing more than pretext. It is well established that even though it took hours for IDF forces to arrive at the spot, eventually Israel’s military repelled or killed Hamas’ fighters. We are writing this piece more than forty days after the 7th of October 2023, and we would need to suspend all disbelief to argue that Israel’s continuous carpet bombing of Gaza is its last resort in repelling an attack that was repelled more than a month earlier.
The only way around this conclusion would be to argue that Israel’s right to self-defence includes potential future attacks by Hamas and/or that “eliminating” Hamas’ as such is part of Israel’s purported right to self-defence. Neither argument is convincing and, if anything, if we accepted them they would mean the effective end of the prohibition of the use of force. The first argument was championed by the Bush administration and it involves a purported right to pre-emptive self-defence that covers not just attacks that have occurred or are about to occur but also attacks that may (or may not) occur in an unspecified point in the future (“preemptive self-defence”). This argument was rejected by the vast majority of states, even if it has left a lasting imprint in international law. The second iteration of this argument simply dispenses with the concept of an armed attack altogether and links ‘self-defence’ to a state’s own perception of its ‘permanent security’, a term that we borrow from the historian of genocide A. Dirk Moses. This idea has a number of troubling implications but on a formalist level is simply incompatible with even the more elementary idea of prohibiting the use of force in international relations. The very purpose of Articles 2(4) and 51 was to narrow down drastically the instances of permitted uses of force and to de-link such uses from vague and often entirely indefensible ideas of security. Of course, as TWAIL and other critical scholars have noted, this effort has not been fully successful, as racialised ideas of ‘savagery’ and ‘barbarity’ have repeatedly been used to justify the use of force against Global South states and other political communities. Nevertheless, the vast majority of states have resisted (albeit sometimes inconsistently) these efforts to relax the prohibition of the use of force to the point of de facto disappearance. Even though we consider this prohibition to be far from perfect and we believe that it has often failed to protect oppressed peoples, we are convinced that dispensing with it would bright about an even more oppressive and unjust international (legal) order.
This is where we wish to switch gears and ask a broader, non-doctrinal question: what has made it possible for lawyers and (Western) leaders alike to look at the events that followed the 7th of October and claim that this is a legitimate instance of self-defence? Our answer is that even though the ‘war on terror’ did not manage to alter the ‘law in the books’ it had a profound effect on legal consciousness and on political culture more broadly. This shift has relied on and, in turn, amplified the racialised and, more broadly, hierarchical elements of the international (legal) order by authorising excessive, often eliminationist violence as a response to the violence (justified or not, legitimate or not) of subaltern actors. The fact that for decades after 9/11 the US could use the vaguest of references to (frankly, imaginary) attacks in order to justify, say, its extensive drones program across the world is only explicable, if we acknowledge the purchase of narratives and imaginaries that treat Arabs and/or Muslims and other racialized people as inherently violent, “human animals”, as permanent threats to ‘Western values’ and lives, even in the absence of concrete instances of violence or even when violence has occurred without an evident causal link to them. For this reason, we think that even though there are very good reasons to seek to preserve abstract legal rules and principles, we need to also be attentive to the ideas, beliefs, and structures of power that concretise such rules into specific legal conclusions. In the realm of self-defence and elsewhere, Palestinians have been systematically dehumanised and demonised for more than a century. In fact, all this talk about self-defence has been conveniently used as the cover up for a genocide unfolding before our eyes.
Associate Researcher, Radboud University
Associate Professor, ANU College of Law