Israel and the Right of Self-Defense

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Legal trickery

1/   The right of states to defend themselves against attack is enshrined in Article 51 of the United Nations Charter.  This seems simple and uncontroversial.   But when it comes to Israel, ’complications’ arise.  

2/   For example, the International Court of Justice Advisory Opinion, 2004 stated in its non-binding view that Article 51 of the UN Charter did not support Israel’s right to self-defense.  The Court’s reasoning was that the right only applied to attacks by other states and not from within an occupied territory.  

3/   Strangely, despite the resources available to the Court, it appeared ignorant of the Fourth Geneva Convention.  This clearly states:  

The Occupying Power may, however, subject the population of the occupied territory to provisions that are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communications used by them.    Article 64 (para 2)

4/   Expressed many times, there is no doubt that the Court considered Israel an Occupying Power.  Yet the Court failed in its duty to make clear that the Convention clearly permits the right of self-defense against attacks from within occupied territory.  In fact, the Fourth Geneva Convention expresses this as a duty to maintain orderly government.   Further, United Nations Security Council Resolutions 1483 and 1511, apparently unknown to the Court, support this view. 

5/   But can a state claim the right of self-defense from attack not only by other states but also from other states?  That is, is self-defense permissible where the state authorities concerned cannot or will not control those who attack from their territory?  An example relevant to Israel would be attacks from Lebanon by Hezbollah.  The answer is again, yes.  Self-defense in such circumstances is absolutely permissible as made clear in the aftermath of 9/11 with UNSCR 1368 and 1373.  Without any clear or firm opposition from UN members, this effectively became international law.  

6/   In sum, states have a legal right to self-defense from attacks by other states, from other states and from occupied territory.  It is truly amazing that the ICJ Advisory Opinion did not make this clear.  But why not?  Perhaps the Court was seriously biased?  To have read their Opinion is to know that the answer is yes, a thousand times.

 

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