The current round of conflicts between Israel and Hamas which ended recently, at least temporarily, after an Egyptian-brokered ceasefire, has once again triggered a debate on a very contentious issue of international law on the use of force – the invocation of the right of self- defence by a state against an armed attack by non-state actors especially those operating from a territory under its occupation.
The latest outbreak of violence started with the Israeli police crackdown on worshippers at the Al-Aqsa Mosque compound and Palestinians who were protesting against their planned and forceful eviction from their homes and land in Sheikh Jarrah in occupied east Jerusalem. This prompted Hamas along with the Palestinian Islamic Jihad group to fire a volley of rockets into Israel in solidarity, triggering air strikes from Israel on May 10 claiming the right to defend itself.
The inherent right of ‘individual or collective self defence if an armed attack occurs’ has been recognised in Article 51 of the UN Charter. The right of self-defence is an exception to the general prohibition on the “threat or use of force against the territorial integrity or political independence of any State” as embodied in Article 2(4) of the UN Charter. Any lawful exercise of the right of self-defence pursuant to Article 51 requires that the defender state is a victim of an armed attack by the aggressor state. However, every use of force may not amount to an ‘armed attack’ as it has to cross some threshold of intensity as to scale and effect.
According to the International Court of Justice (ICJ) it only includes “the most grave form of the use of force” (Nicaragua v.US, 1986). Furthermore, resort to force in self-defence is subject to strict conditions prescribed by international law. Most importantly, it must be directed to repel an ‘armed attack’ with only measures which are ‘proportionate’ reflecting the scope, nature and gravity of the attack by the aggressor and ‘necessary’ to the purpose of driving back the aggression complying with rules relating to the conduct of hostilities.
Thus, international law does not allow those self-defence measures which are excessive and not necessary in response to an armed attack. There are two more conditions which must be met for invocation of the right of self-defence. Firstly, the ‘armed attack’ must emanate from outside territory under the control of the defending state. Secondly, the perpetrator of armed conflict must be a state. Article 51 of the UN Charter has traditionally been interpreted to exclude non-state actors as perpetrators of armed conflict, unless a certain degree of state involvement could be inferred especially when a state from which the non-state actor is operating is unwilling or unable to deal with them.
The view, however, has been contended by some states including Israel and the USA and international law scholars. They argue that there is nothing in the language of Article 51 of the UN Charter that precludes the exercise of the right of self-defence against armed attack by non-state actors. In their views the text of article 51 of the UN Charter only refers to an ‘armed attack’ without specifying that it should emanate only from a state. This broader interpretation of the text of the Article 51 gained currency after the attacks on the World Trade Center on 11 September 2001. It was for the first time that terrorists had demonstrated the ability to commit acts comparable in effect to an armed attack by a State.
The critics of the traditional view, however, fail to recognise the fact that an exception is always read and interpreted in conjunction with the general rule. In this case while Article 2(4) lays down a general rule, Article 51 stipulates an exception to that general rule. Thus, when general rule contained in Article 2(4) clearly indicates its inter-state nature an exception of self-defence enshrined in Article 51 cannot be interpreted and read to include non-state actors.
Even if we assume that Israel’s invocation of right of self-defence against non-state actors like Hamas is justified, its application in situations of occupation is still problematic. In the Chatham House Principles of International Law on the Use of Force in Self-Defence, it has been argued that an armed attack for the purpose of invoking right of self defence must be directed from outside the territory controlled by the state. In the present case Hamas is not operating from a foreign territory but from a territory under Israeli occupation. The ICJ in its 2004 advisory opinion in the Wall case also stated that Israel cannot be allowed to act in selfdefence against Hamas as long as it was still regarded as an occupying power in the Gaza-Strip.
Israel, however, maintains that its occupation of Gaza ended after its evacuation in 2005. Israel argues that a territory cannot be said to be occupied without “boots on the ground”. This is, however, contrary to the situation on the ground. Gaza is still under effective control of Israel as it controls the flow of people and goods and the airspace; patrols the coastline; collects customs and does not allow the building of an airport or seaport; and has the capacity to send troops at any time it decides. The UN has also been reluctant to accept the view that Gaza is no longer an occupied territory. Even the Israeli Supreme Court in Ayub,et al.v.Minister of Defense (2004) admitted that Gaza Strip can still be considered to be an occupied territory.
Israel’s status as an occupying power has also been confirmed by the ICJ in the Wallopinion. While arguing that as occupying power Israel can’t invoke the right of self-defence, it is not to suggest that it should stand idle or turn the other cheek when Hamas fires rockets and mortars into its territory. In fact, Israel has the right, and indeed the duty, to respond to the security threats emanating from Hamas. It is rather argued that the measures taken by Israel must be in conformity with applicable international law.
The most appropriate branch of international law applicable in this case is the law of occupation and jus in bello- international humanitarian law (IHL) and not the jus ad bellum. Israel could use belligerent reprisals as justification for its military offensive against Hamas provided it satisfies the conditions laid down under IHL such as the proportionality requirement; the prohibition of indiscriminate attack; the protection of civilians except those taking direct part in hostilities, and civilian objects etc. Media reports suggest that Israel, like in the past, this time has also defied most of these cardinal principles of IHL.
(The writer is Professor and Chairperson, Department of Strategic and Security Studies, AMU)