This is not a war of self-defence

IssueDecember 2023 - January 2024
14 October demo in London. Photo: Felicity Laurence
Feature by Milan Rai

On 31 October, Keir Starmer explained why he opposed calls for a ceasefire in Israel’s war on Gaza, in the same terms as the US and British governments. The Labour leader said: ‘that would leave Hamas with the infrastructure and the capability to carry out the sort of attack we saw on October the 7th.... Hamas would be emboldened and start preparing for future violence immediately.’

Therefore, Starmer argued, the right position was to ‘stand by the right to self-defence of any nation which suffers terrorism on this scale’, while also calling for humanitarian pauses during Israel’s assault on Gaza.

Ceasefires are agreements between both sides in a conflict, and they cover the whole territory of the conflict. The call for a ceasefire, by the UN and by most major international NGOs, has been for a permanent end to the fighting.

Temporary ‘pauses’, on the other hand, are decided just by one side, without any commitment to repeating or extending them. In this conflict, Israel has made its four-hour pauses very localised; ‘in the western Rafah area between 10am and 2pm local time’ on 20 November, for example.

People calling for ‘humanitarian pauses’ accept that Israel’s war of destruction in Gaza is legally and morally justified, and must carry on until Hamas has been eliminated ‘by destroying its military and governing abilities’. That was the main war aim spelled out by Israeli prime minister Benjamin Netanyahu on 25 October, just ahead of the ground invasion of Gaza.

At the time of going to press, perhaps 16,000 people have been killed in Gaza, while Israeli officials estimate that only around 5,000 out of Hamas’s 25,000 fighters have been killed (according to the Financial Times).

Peace researcher Paul Rogers warned on 25 October: ‘Instead of extinguishing Hamas, the war will result in tens of thousands more very angry young Palestinians set to join the organisation or a similar successor.’

There are some more fundamental points.

Starmer and others support the Israeli devastation of Gaza as a legal exercise of ‘the right to self-defence’, under Article 51 of the UN Charter.

But the war has nothing to do with self-defence in the sense of Article 51.

The relevant principles were set out in 2005 by the respected mainstream British thinktank, Chatham House, under the guidance of a former senior foreign office lawyer, Elizabeth Wilmshurst.

Article 51 ‘preserves the right to use force in self-defence “if an armed attack occurs”’.

The study group went on to point out that there was wide, though not universal, support for the idea that states also have a right to act in self-defence ‘in order to avert the threat of an imminent attack – often referred to as “anticipatory self-defence”’.

“Instead of extinguishing Hamas, the war will result in tens of thousands more very angry young Palestinians set to join the organisation or a similar successor”

For those who believe in a right of ‘anticipatory self-defence’, the Chatham House group said, there are certain conditions, going back to the Caroline case in the US in 1837.

In the words of the Chatham House expert panel: ‘A threatened attack must be “imminent” and this requirement rules out any claim to use force to prevent a threat emerging’ (emphasis in original).

The Israeli war on Gaza has been specifically launched to prevent any further military threat to Israel from Hamas – not only to eliminate its military capacities, but also to destroy its ‘governing ability’, an even deeper form of prevention.

This is far beyond the reach of Article 51 of the UN Charter.

Marten Zwanenburg, a specialist in Military Law at Amsterdam Law School, pointed out on 19 October, ‘Israel can, on the basis of self-defense, stop an attack by Hamas and prevent new imminent attacks. But the force they deploy must be proportional and aimed at stopping an attack and getting their citizens back: no more than that.’

The World Court

There is an even deeper issue. ‘The right to self-defence can be invoked when the state is threatened by another state, which is not the case’ in Gaza. Those were the words of Francesca Albanese, UN special rapporteur on human rights in the occupied Palestinian territories, speaking on 14 November.

She said in another interview: ‘Israel... cannot claim the right of self-defence against a threat that emanates from a territory it occupies, from a territory kept under belligerent occupation.’

Albanese was basing her view on the World Court decision in 2004 that Israel’s separation wall in the occupied West Bank was illegal. The international court of justice said that Israel could not invoke the right to self-defence in an occupied territory, and also that the right of self-defence only applies to attacks on one state by another state.

Attacks launched from the West Bank into Israel were (a) not really from territory outside Israel, because Israel has effective ‘control’ over the West Bank and (b) not attacks by a state – even Israel didn’t claim the attacks were coming from another state.

Therefore, Article 51 and the right of self-defence did not apply to the Wall, according to the top legal body in the world.

For the same reasons, Article 51 and the right of self-defence do not apply to the current Gaza War, as Francesca Albanese pointed out in November.

Starting rightly

British lawyer Ralph Wilde of University College London has made an even more serious criticism of the ‘self-defence’ argument. Wilde says that ‘approaching Israel’s current military action in Gaza as if it is an isolated incident of the use of force, and asking whether Israel has a right to self-defence in international law justifying this action, is to fundamentally mischaracterize the situation’.

Israel captured the Gaza Strip and the West Bank illegally in 1967 and has maintained its illegal occupation since then: ‘It continues to occupy both the Gaza Strip and the West Bank, because both territories remain subject to its continued overall military control.’

“If Ukrainian fighters attacked civilians inside Russia, this would not mean that Russia would then be legally permitted to extend its illegal war in Ukraine, in order to neutralize the threat of further such attacks”

Wilde wrote on 9 November: ‘Israel’s current action is actually a re-configuration of the existing use of force it has exercised, in the form of the blockade (with episodic bombing and land incursions) and before that in its original boots-on-the-ground, and settlements, manifestation, adding new means and methods.

‘To say that Israel has somehow a right to do this new, amplified form of an existing use of force in self-defence because of violent acts of resistance to the earlier form of the same use of force, even when such acts are illegal because they target civilians, and/or are indiscriminate attacks that risk harming civilians, and/or involve the kidnapping of civilians, is circular logic.’

Wilde went on: ‘Imagine, hypothetically, that Ukrainian resistance fighters launched attacks within Russia involving targeting civilians, indiscriminate attacks risking harm to civilians, and the taking of civilian hostages. These attacks would be illegal, but they would not mean that Russia would then be legally permitted to extend its illegal war in Ukraine, in order to neutralize the threat of further such attacks.’

A permanent ceasefire is not only needed for humanitarian reasons, and because the cost of the Israeli assault to civilians is completely out of proportion to its war aims, but because there is no legal right of self-defence involved here, despite the fact that commentators across the board (including in Guardian editorials) accept the war is about self-defence.