Editorials
🇵🇸 Gaza’s Self-defense against Israel’s Self-defense?
“Against the terrorist acts of Hamas, Israel has the right to self-defense.” This seems to be a self-evident statement that no one would disagree with. Nevertheless, I would like to take you on a closer examination. By Gerhard Fulda.
Self-defense is a term from the system of international law.
So, we must first ask the question of how this right is applicable to Gaza.
Even for legal experts well-versed in international law, this is not entirely straightforward β the small coastal strip on the Mediterranean is something very unique.
At first glance, it seems like this could only be an international conflict. However, international law is a framework that seeks to subject the relationships between states to legal rules.
Gaza, on the other hand, is not a state. We are dealing with an asymmetric conflict in which an internationally recognized state confronts a non-state adversary.
In the literal sense, Gaza was also not an “occupied territory” because there was no Israeli military presence within the territory.
From 1967 until the year 2005, Gaza was indeed almost 40 years long a “occupied territory” in the literal sense as well. However, when the Israeli troops withdrew, the strip remained surrounded. All access points, whether by land, sea, or air, were under Israeli control.
This is why Germany, like all other EU countries, considers the West Bank and Gaza as occupied territories β an occupation without occupying troops. Israel sees it differently and only refers to them as “disputed territories.” According to international law, only previous states could be considered occupied.
However, here we apply the international legal provisions applicable to occupied territories, and immediately encounter a problem.
The term “self-defense” is the response to the corresponding international legal term “attack.” Especially in English literature, we find the initially surprising opinion that the occupying state cannot be “attacked” from the territories it occupies.
After October 7, the German Foreign Minister repeatedly emphasized Israel’s right to self-defense against a terrorist attack. There can be no doubt about the qualification as “terrorist.” But why should a factually undeniable attack in this case not also be legally designated as such?
Unfortunately, it is not known whether the international law experts at the Foreign Office have examined the question of whether the West Bank and Gaza may possibly be classified as “illegally occupied.”
Such a judgment would have far-reaching consequences.
The qualification “illegal” in international discussions refers to situations where the self-determination of the inhabitants in the occupied territory has been largely suspended for a long time. Or when there is no apparent effort by the occupying power to bring about a formal peace agreement in the foreseeable future. Both criteria are met in Gaza, so unequivocally that one comes close to a “veiled annexation,” which, like any annexation, is legally prohibited.
The Gaza war is also considered an “illegally occupied territory” at the time of the attacks.
Such categorization grants the inhabitants of the occupied territory the right to resistance β a confirmation provided by the International Court of Justice in 2004, as stated in the First Additional Protocol to the Geneva Conventions of the Red Cross β the language of the United Nations during decades of decolonization.
I quote Yael Ronen, an Israeli professor of international law at the University of Jerusalem:
“The occupying state, of course, has no right to self-defense against an act of self-defense.”
This is essentially the same conclusion as contained in the sentence that one cannot be attacked from an occupied territory.
If the term “attack” does not apply here, then the classification into the corresponding term “self-defense” suffers the same fate.
In other words, if Gaza was in a state of illegal occupation on October 7, 2023, then the Palestinians are entitled to resist the occupation with the right to self-defense. In this case, Israel cannot “naturally” invoke Article 51 of the UN Charter.
In 2008, Professor Ronen did not apply this insight to the Palestinian territories in her case study on the Middle East. Her justification was that Israel could argue that it was a victim of an aggressive war in 1967, ultimately leading to the occupation of the West Bank and Gaza. Therefore, there was no illegitimacy in its entry into war, which would have resulted in a lack of legitimacy for the occupation.
Whether Israel was actually attacked in 1967 or initiated a preemptive strike is historically disputed. However, this distinction is no longer crucial today, as the lack of legitimacy in the occupation has become evident over time (two generations!) and due to the apparent denial of the Palestinians’ right to self-determination.
The situation in Gaza has often been described as a prison. The analogy also emphasizes that the “prison guards” are by no means defenseless. They do not have to passively accept murder, rape, and hostage-taking. Everyone has the right to self-defense.
The possibilities and limitations of this right are carefully spelled out in most national legal systems around the world, both normatively and through jurisprudence.
For international law, such detailing is still pending.
The current international discussion appears to be blocked, mainly due to the “war on terror” declared by the USA after 9/11 in 2001.
In Germany as well, the opinion is held that the discussion about the right to resist occupation has been obsolete since then. This is a dangerous mistake. The right to resist from occupied territories is simply abolished if the occupying power can label such violence as “terrorism.”
South African human rights activist Jean Dugard wrote in 2002 that the aim is to “set limits on the extent to which human rights can be violated in the name of combating terrorism.”
Setting limits should ideally apply in both directions. The terrorist acts of October 7 are reason enough to call for the human rights-based containment of the right to resist from occupied territories. The Humanitarian Law of War, including the Geneva Conventions of 1949 and their Additional Protocols of 1977, does contain regulations for non-international conflicts in the Second Protocol. However, during the several-year-long government conference in the 1970s, these regulations fell significantly behind the proposals of the International Committee of the Red Cross regarding the methods and means of combat.
As long as there is legal uncertainty, publications driven by interests and conflicting opinions will complicate the overview. Such disagreements in international law should not be dismissed as insignificant disputes among scholars.
International law is characterized by the uniqueness that sovereign states have created a system in which they are both legislators and subject to these norms. This means that through state practices guided by legal convictions, existing law can change, and sometimes even dissolve. The focus of publications, whether directly or indirectly related to diplomats and ministers in forming their opinions, revolves around these legal convictions of governments. Professors then become “sources of international law,” often without transparency regarding their political leanings and motives.
On the stage of scholarly debate, political influence also comes into play. The imminent decision of the International Court of Justice in the South Africa vs. Israel interim proceeding will likely at least hint at which considerations of this nature will find their way into the realm of international legal reality.
Gerhard Fulda
Berlin, January 2024