Fresh Air

In a public address in Canberra on Nov. 14 that was televised across Australia, Francesca Albanese, the UN’s Special Rapporteur on the Occupied Palestinian Territories, recently made the argument that Israel “cannot claim the right of self-defence against a threat that emanates from the territory it occupies – from a territory that is kept under belligerent occupation.” It is in the public interest to examine whether this sweeping assertion actually has a basis in settled international law.

In the first place, it seems clear that few countries in the world would agree with it. There is near unanimous international consensus since the September 11 attacks and UN Security Council Resolutions 1368 and 1373 that Article 51 grants a right to self-defence against terrorism, which would of course also apply to Israel’s battle with terrorist groups. Virtually all Western nations have explicitly recognised Israel’s right to self-defence in the wake of the Hamas attacks of October 7.

The sole basis for Albanese’s position that Israel has no right to self-defence under Article 51 of the UN Charter appears to be paragraph 139 in an International Court of Justice (ICJ) Advisory Opinion from 2004 on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”:

Article 51 of the Charter… recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State.  However, Israel does not claim that the attacks against it are imputable to a foreign State. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.  The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.

Before one addresses this specific claim – which has been widely panned by eminent international law experts and jurists as well as by dissenting judges within the ICJ itself – it is important to note three things.

First, ICJ advisory opinions have no binding force, and therefore can’t be cited definitively as law. Second, this judgement is from 2004, a year before Israel completely withdrew from Gaza, and is thus wholly inapplicable to Gaza’s current status. Finally, this case should never have been heard for multiple reasons, including its inherently biased nature, which is why Australia, the United Kingdom and the United States, among others, asked the Court to exercise its discretion and not to render an advisory opinion.

Summary of 2004-2005 legal criticisms of the ICJ Advisory Opinion

• The wording of Article 51 mentions only an “inherent right” to self-defence. There is no basis in the text for restricting this to armed attacks by or emanating from another state.
• Schrödinger’s Palestine: “Palestine” cannot be treated as a state, or a state-like international entity, by the ICJ only to benefit from the parts of International Humanitarian Law (IHL) it likes without also being treated like a state that would trigger Article 51 even under the ICJ’s restrictive reading. The ICJ advisory opinion itself says that it “regarded the special status of Palestine, though not yet an independent State, as allowing it to be invited to participate in these proceedings. There is thus a dispute between two international actors.”
• UN Security Council Resolutions 1368 and 1373 – which, unlike the advisory opinion, are binding international law – make clear that terrorism by non-state actors is covered by Article 51 without any caveats.
• There is no clear basis in international law for the position that the right to self-defence under Article 51 is restricted in the context of an occupying power.
• The actual extent of Israel’s control over the territories in question, or whether certain areas of Gaza and the West Bank should be considered “occupied” under IHL at all, given the Oslo Accords and the existence of the Palestinian Authority, is highly debatable.

On top of these legal issues, in my view, the ICJ clearly did not understand the international nature of the Second Intifada.

Separate ICJ opinions on Article 51

Two ICJ judges at the time, the late Thomas Buergenthal and former ICJ president Rosalyn C. Higgins, Baroness Higgins, GBE, KC, dissented from the ICJ’s conclusion on Article 51’s applicability and its interpretation of the Article’s text.

According to Judge Buergenthal:

The United Nations Charter, in affirming the inherent right of self-defence, does not make its exercise dependent upon an armed attack by another State, leaving aside for the moment the question whether Palestine, for purposes of this case, should not be and is not in fact being assimilated by the Court to a State.  Article 51 of the Charter provides that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations…”…In neither of these resolutions [1368 or 1373] did the Security Council limit their application to terrorist attacks by State actors only, nor was an assumption to that effect implicit in these resolutions. In fact, the contrary appears to have been the case…

Second, Israel claims that it has a right to defend itself against terrorist attacks to which it is subjected on its territory from across the Green Line and that in doing so it is exercising its inherent right of self-defence. In assessing the legitimacy of this claim, it is irrelevant that Israel is alleged to exercise control in the Occupied Palestinian Territory, whatever the concept of “control” means given the attacks Israel is subjected from that territory or that the attacks do not originate from outside the territory. For to the extent that the Green Line is accepted by the Court as delimiting the dividing line between Israel and the Occupied Palestinian Territory, to that extent the territory from which the attacks originate is not part of Israel proper.  Attacks on Israel coming from across that line must therefore permit Israel to exercise its right of self-defence against such attacks…

Judge Higgins, too, noted the contradictory and unpersuasive nature of the ICJ’s majority opinion in her separate opinion:

I do not agree with all that the Court has to say on the question of the law of self-defence. In paragraph 139 the Court quotes Article 51 of the Charter and then continues “Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State.” There is, with respect, nothing in the text of Article 51 that thus stipulates that self-defence is available only when an armed attack is made by a State … I also find unpersuasive the Court’s contention that, as the uses of force emanate from occupied territory, it is not an armed attack “by one State against another”. I fail to understand the Court’s view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory, a territory which it has found not to have been annexed and is certainly “other than” Israel. Further, Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, but not sufficiently an international entity for the prohibition of armed attack on others to be applicable (emphasis added).

A third judge, Pieter Hendrik Kooijmans, a former Foreign Minister of the Netherlands, also noted that the ICJ’s assertion about Article 51 was irrelevant in light of UN Resolutions 1368 and 1373, which:

recognize the inherent right of individual or collective self-defence without making any reference to an armed attack by a State. The Security Council called acts of international terrorism, without any further qualification, a threat to international peace and security which authorizes it to act under Chapter VII of the Charter. And it actually did so in resolution 1373 without ascribing these acts of terrorism to a particular State.

However, he goes on to erroneously conclude that the Court is correct, because:

The right of self-defence as contained in the Charter is a rule of international law and thus relates to international phenomena. Resolutions 1368 and 1373 refer to acts of international terrorism as constituting a threat to international peace and security; they therefore have no immediate bearing on terrorist acts originating within a territory which is under control of the State which is also the victim of these acts.

As noted by Judges Buergenthal and Higgins, “Palestine” is clearly something other than Israel. But even more importantly, leaving aside Kooijman’s interpretation of the word “international”, as a factual matter, he – and the Court overall – was incorrect about the nature of the Second Intifada, which was orchestrated, coordinated and supported from abroad and involved international groups.

Most of Hamas’ political leadership has been based outside the country since the 2000s, including at various times in Jordan, Syria, Lebanon, Qatar, Kuwait, Turkey, Iran and even the US. Furthermore, Hamas is one of Iran’s Islamic Revolutionary Guard Corps’ (IRGC) “external armies” and is funded, armed, trained and directed by the regime. The Palestinian Islamic Jihad (PIJ), also heavily involved, is a veritable branch of the IRGC whose leadership was also partially based outside Israel, Gaza and the West Bank. Hezbollah, the Lebanese branch of the IRGC, also had an on-the-ground presence during the Second Intifada attacking or overseeing attacks on Israel from both the West Bank and Gaza.

Finally, by Judge Kooijman’s logic, the September 11 attacks themselves would arguably not be considered international terrorism, as the hijackers conducted the attack from the US.

International law experts on the ICJ’s conclusion

A Chatham House study in late 2005 surveyed international law experts on this question, among others pertaining to Article 51. The respondents almost universally rejected the ICJ’s interpretation.

Sir Franklin Delow Berman, KCMG, KC, for instance, stated:

There seems no reason to limit the right of self-defence to an attack by another state…There is nothing in the text of Article 51 to demand, or even to suggest, such a reading, and logic would be decisively against it. Granted a similar ‘attack’, why should a state’s legal capacity to protect itself depend on the identity of the attacker? To the extent that the ICJ may be thought to have suggested something different in the Wall Advisory Opinion, this should be disapproved.

Sir Christopher John Greenwood GBE, CMG, KC, a former ICJ judge, similarly asserted:

[An ‘armed attack’ under Article 51] can definitely stem from a terrorist group or other non-state actor. To the extent that the ICJ suggested the contrary in the Wall Advisory Opinion, it was just wrong and its approach is manifestly at odds with state practice in the aftermath of the attacks of 11 September 2001. The text of Article 51 does not contain anything to suggest that an armed attack must emanate from a state…Most laymen would think international lawyers were mad if they believed that there was no right of self-defence against terrorist attack.

Alan Vaughan Lowe KC declared:

The right of self-defence is a right to use force to avert an attack. The source of the attack, whether a state or a non-state actor, is irrelevant to the existence of the right. No-one is obliged by international law passively to accept an attack… Much of the concern with the responsibility for attacks seems to me to stem from the mistaken belief that force can only be used outside the territory of a state against an attacker if the attack emanates from another state that is thereby in breach of international law.  That seems to me to be wrong.  Force may be used to avert a threat because no-one, and no state, is obliged by law passively to suffer the delivery of an attack.  That is what it means to say that the right is ‘inherent’. Defensive force is in no sense dependent upon the attack being a violation of international law.

Sir Adam Roberts KCMG, FBA said:

It is surprising that the ICJ, in the only discussion of Article 51 in the entire Advisory Opinion, did not explain and justify a conclusion that seems, on the face of it, hard to square with the language of the Charter. On this specific point, i.e. regarding the scope of Article 51, the dissenting Declaration made by Judge Thomas Buergenthal is much more persuasive. In what it says about Article 51, the ICJ’s Wall Advisory Opinion is likely to reinforce concerns that the ICJ is not as rigorous as it should be; and also that it is not knowledgeable about security issues, and has failed to understand the basic fact that states have for centuries been concerned about possible attacks by non-state entities as well as by other states.

Roberts then went on to address the idea that it would even matter whether an attack came from occupied territory and questioned the ICJ’s assumptions about Israel’s control:

On this particular question the Court’s logic again appears flawed… it is questionable to suggest or imply that there can be no right of self-defence against an attack that originates in territory in which Israel is deemed to exercise control. In most circumstances the existence of a right of self-defence is accepted. For example, if an attack originates within a state, that state would in principle be seen as entitled in international law to take action against those launching such an attack: that is part of its prerogative as a sovereign state. Similarly, if an attack originates outside a state, i.e. in the territory of another state, then the attacked state would in principle be seen to be within its rights in taking action against it.

All this raises the question as to whether the status of occupied territory is so special and unique that the right of the occupying power to self-defence is in some way significantly more restricted than the rights of governments in other situations. It is not clear that there is any such restriction in international law (emphasis added).

A further issue arises, which the ICJ did not discuss: whether at all relevant times the areas of the West Bank and Gaza under the control of the Palestinian National Authority should be deemed to be occupied territory. It is odd that the ICJ simply assumed that Israel exercises control over the whole of the West Bank and Gaza. It did not even consider the possibility that in certain areas of these territories its control was limited. The Palestinian National Authority is not even mentioned in the Advisory Opinion.

Philippe Joseph Sands, KC Hon FBA also disagreed with the ICJ’s conclusion, saying simply, “I regret the language adopted by the ICJ in its Wall Advisory Opinion of 2004.”

Occupation

There is no precise definition of “occupation” under IHL, and thus no way to definitively state whether an occupation has begun or ended. However, no reasonable definition would apply to Israel’s relationship with Gaza.

Israel forcibly removed its citizens and withdrew all military personnel from Gaza in 2005. The designated genocidal terrorist organisation Hamas has ruled over Gaza since 2007 after violently wresting control of it from the Palestinian Authority, after which Israel rightfully declared it “hostile territory”. The idea that nearly 20 years later, Israel is still occupying Gaza is, on its face, nonsense.

To make the argument that Gaza is still occupied by Israel, the UN abuses the vague concept of “effective control” – an undefined notion not found in treaty law but still used as the basis for defining “occupation” – warping it beyond any legal or factual basis.

Those who baselessly argue, based on blatant misrepresentation of the concept, that Israel has “effective control” of Gaza for the purposes of IHL would have to explain how the actual governing authority of Gaza, Hamas, managed to plan and launch a full-scale invasion involving thousands of combatants and a massive bombardment of Israel from that territory without Israel’s knowledge. Whatever control Israel is alleged to have, it clearly is not “effective” by any possible legal definition of the term.

A moot point

IHL has evolved since the 19^th century not to create reality, but to manage it. The reality is that there are just wars, and that these wars require rules to protect civilians to the greatest extent possible. The “inherent right” codified under Article 51 is a long-standing principle of self-preservation without caveats beyond other IHL rules under customary international law. To remain fit for purpose, IHL and the interpretation of Article 51 would by definition have to cover any “armed attack”, including terrorism, regardless of its source. Otherwise, as noted by Sir Greenwood above, it would and should be considered mad. No relevant version of international law would allow terrorist groups to attack states while prohibiting those states from defending themselves.

Israel completely withdrew from Gaza in 2005, ending the occupation and rendering the already questionable 2004 Advisory Opinion irrelevant to the current situation. Even Hamas admits Gaza is no longer occupied.

Even more importantly, In 2015, the non-existent “state of Palestine” – which includes Gaza – was farcically allowed by the UN to ratify the Geneva Conventions and other international agreements. It thus became a state-like entity under IHL, which renders this entire argument moot.