No, Israel Does Not Have the Right to Self-Defense In International Law Against Occupied Palestinian Territory

by Noura Erakat

[Smoke over Gaza following an Israeli airstrike. Image by Scott Bobb. From Wikimedia Commons.] [Smoke over Gaza following an Israeli airstrike. Image by Scott Bobb. From Wikimedia Commons.]

[In view of Israel’s assertions that its current attacks on the Gaza Strip are an exercise in legitimate self-defense, Jadaliyya re-posts an analysis of this claim by Co-Editor Noura Erakat initially published in 2012.]

On the fourth day of Israel’s most recent onslaught against Gaza’s Palestinian population, President Barack Obama declared, “No country on Earth would tolerate missiles raining down on its citizens from outside its borders.” In an echo of Israeli officials, he sought to frame Israel’s aerial missile strikes against the 360-square kilometer Strip as the just use of armed force against a foreign country. Israel’s ability to frame its assault against territory it occupies as a right of self-defense turns international law on its head.

A state cannot simultaneously exercise control over territory it occupies and militarily attack that territory on the claim that it is “foreign” and poses an exogenous national security threat. In doing precisely that, Israel is asserting rights that may be consistent with colonial domination but simply do not exist under international law.

Admittedly, the enforceability of international law largely depends on voluntary state consent and compliance. Absent the political will to make state behavior comport with the law, violations are the norm rather than the exception. Nevertheless, examining what international law says with regard to an occupant’s right to use force is worthwhile in light of Israel’s deliberate attempts since 1967 to reinterpret and transform the laws applicable to occupied territory. These efforts have expanded significantly since the eruption of the Palestinian uprising in 2000, and if successful, Israel’s reinterpretation would cast the law as an instrument that protects colonial authority at the expense of the rights of civilian non-combatants.

Israel Has A Duty To Protect Palestinians Living Under Occupation 

Military occupation is a recognized status under international law and since 1967, the international community has designated the West Bank and the Gaza Strip as militarily occupied. As long as the occupation continues, Israel has the right to protect itself and its citizens from attacks by Palestinians who reside in the occupied territories. However, Israel also has a duty to maintain law and order, also known as “normal life,” within territory it occupies. This obligation includes not only ensuring but prioritizing the security and well-being of the occupied population. That responsibility and those duties are enumerated in Occupation Law.

Occupation Law is part of the laws of armed conflict; it contemplates military occupation as an outcome of war and enumerates the duties of an occupying power until the peace is restored and the occupation ends. To fulfill its duties, the occupying power is afforded the right to use police powers, or the force permissible for law enforcement purposes. As put by the U.S. Military Tribunal during the Hostages Trial (The United States of America vs. Wilhelm List, et al.)

International Law places the responsibility upon the commanding general of preserving order, punishing crime, and protecting lives and property within the occupied territory. His power in accomplishing these ends is as great as his responsibility.

The extent and breadth of force constitutes the distinction between the right to self-defense and the right to police. Police authority is restricted to the least amount of force necessary to restore order and subdue violence. In such a context, the use of lethal force is legitimate only as a measure of last resort. Even where military force is considered necessary to maintain law and order, such force is circumscribed by concern for the civilian non-combatant population. The law of self-defense, invoked by states against other states, however, affords a broader spectrum of military force. Both are legitimate pursuant to the law of armed conflict and therefore distinguished from the peacetime legal regime regulated by human rights law.


When It Is Just to Begin to Fight 

The laws of armed conflict are found primarily in the Hague Regulations of 1907, the Four Geneva Conventions of 1949, and their Additional Protocols I and II of 1977. This body of law is based on a crude balance between humanitarian concerns on the one hand and military advantage and necessity on the other. The post-World War II Nuremberg trials defined military exigency as permission to expend “any amount and kind of force to compel the complete submission of the enemy…” so long as the destruction of life and property is not done for revenge or a lust to kill. Thus, the permissible use of force during war, while expansive, is not unlimited.

In international law, self-defense is the legal justification for a state to initiate the use of armed force and to declare war. This is referred to as jus ad bellum—meaning “when it is just to begin to fight.” The right to fight in self-defense is distinguished from jus in bello, the principles and laws regulating the means and methods of warfare itself. Jus ad bellum aims to limit the initiation of the use of armed force in accordance with United Nations Charter Article 2(4); its sole justification, found in Article 51, is in response to an armed attack (or an imminent threat of one in accordance with customary law on the matter). The only other lawful way to begin a war, according to Article 51, is with Security Council sanction, an option reserved—in principle, at least—for the defense or restoration of international peace and security.

Once armed conflict is initiated, and irrespective of the reason or legitimacy of such conflict, the jus in bello legal framework is triggered. Therefore, where an occupation already is in place, the right to initiate militarized force in response to an armed attack, as opposed to police force to restore order, is not a remedy available to the occupying state. The beginning of a military occupation marks the triumph of one belligerent over another. In the case of Israel, its occupation of the West Bank, the Gaza Strip, the Golan Heights, and the Sinai in 1967 marked a military victory against Arab belligerents.

Occupation Law prohibits an occupying power from initiating armed force against its occupied territory. By mere virtue of the existence of military occupation, an armed attack, including one consistent with the UN Charter, has already occurred and been concluded. Therefore the right of self-defense in international law is, by definition since 1967, not available to Israel with respect to its dealings with real or perceived threats emanating from the West Bank and Gaza Strip population. To achieve its security goals, Israel can resort to no more than the police powers, or the exceptional use of militarized force, vested in it by IHL. This is not to say that Israel cannot defend itself—but those defensive measures can neither take the form of warfare nor be justified as self-defense in international law. As explained by Ian Scobbie:

To equate the two is simply to confuse the legal with the linguistic denotation of the term ”defense.“ Just as ”negligence,“ in law, does not mean ”carelessness” but, rather, refers to an elaborate doctrinal structure, so ”self-defense” refers to a complex doctrine that has a much more restricted scope than ordinary notions of ”defense.“

To argue that Israel is employing legitimate “self-defense” when it militarily attacks Gaza affords the occupying power the right to use both police and military force in occupied territory. An occupying power cannot justify military force as self-defense in territory for which it is responsible as the occupant. The problem is that Israel has never regulated its own behavior in the West Bank and Gaza as in accordance with Occupation Law.

Israel’s Attempts To Change International Law 

Since the beginning of its occupation in 1967, Israel has rebuffed the applicability of international humanitarian law to the Occupied Palestinian Territory (OPT). Despite imposing military rule over the West Bank and Gaza, Israel denied the applicability of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (the cornerstone of Occupation Law). Israel argued because the territories neither constituted a sovereign state nor were sovereign territories of the displaced states at the time of conquest, that it simply administered the territories and did not occupy them within the meaning of international law. The UN Security Council, the International Court of Justice, the UN General Assembly, as well as the Israeli High Court of Justice have roundly rejected the Israeli government’s position. Significantly, the HCJ recognizes the entirety of the Hague Regulations and provisions of the 1949 Geneva Conventions that pertain to military occupation as customary international law.

Israel’s refusal to recognize the occupied status of the territory, bolstered by the US’ resilient and intransigent opposition to international accountability within the UN Security Council, has resulted in the condition that exists today: prolonged military occupation. Whereas the remedy to occupation is its cessation, such recourse will not suffice to remedy prolonged military occupation. By virtue of its decades of military rule, Israel has characterized all Palestinians as a security threat and Jewish nationals as their potential victims, thereby justifying the differential, and violent, treatment of Palestinians. In its 2012 session, the UN Committee on the Elimination of Racial Discrimination described current conditions following decades of occupation and attendant repression as tantamount to Apartheid.

In complete disregard for international law, and its institutional findings, Israel continues to treat the Occupied Territory as colonial possessions. Since the beginning of the second Palestinian intifada in 2000, Israel has advanced the notion that it is engaged in an international armed conflict short of war in the West Bank and the Gaza Strip.  Accordingly, it argues that it can 1) invoke self-defense, pursuant to Article 51 of the United Nations Charter, and 2) use force beyond that permissible during law enforcement, even where an occupation exists.

The Gaza Strip Is Not the World Trade Center

To justify its use of force in the OPT as consistent with the right of self-defense, Israel has cited UN Security Council Resolution 1368 (2001)and UN Security Council Resolution 1373 (2001).  These two resolutions were passed in direct response to the Al-Qaeda attacks on the United States on 11 September 2001. They affirm that those terrorist acts amount to threats to international peace and security and therefore trigger Article 51 of the UN Charter permitting the use of force in self-defense. Israel has therefore deliberately characterized all acts of Palestinian violence – including those directed exclusively at legitimate military targets – as terrorist acts. Secondly it frames those acts as amounting to armed attacks that trigger the right of self-defense under Article 51 irrespective of the West Bank and Gaza’s status as Occupied Territory.

The Israeli Government stated its position clearly in the 2006 HCJ case challenging the legality of the policy of targeted killing (Public Committee against Torture in Israel et al v. Government of Israel). The State argued that, notwithstanding existing legal debate, “there can be no doubt that the assault of terrorism against Israel fits the definition of an armed attack,” effectively permitting Israel to use military force against those entities.  Therefore, Israeli officials claim that the laws of war can apply to “both occupied territory and to territory which is not occupied, as long as armed conflict is taking place on it” and that the permissible use of force is not limited to law enforcement operations.  The HCJ has affirmed this argument in at least three of its decisions: Public Committee Against Torture in Israel et al v. Government of Israel, Hamdan v. Southern Military Commander, and Physicians for Human Rights v. The IDF Commander in Gaza. These rulings sanction the government’s position that it is engaged in an international armed conflict and, therefore, that its use of force is not restricted by the laws of occupation. The Israeli judiciary effectively authorizes the State to use police force to control the lives of Palestinians (e.g., through ongoing arrests, prosecutions, checkpoints) and military force to pummel their resistance to occupation.

The International Court of Justice (ICJ) dealt with these questions in its assessment of the permissible use of force in the Occupied West Bank in its 2004 Advisory Opinion, Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory. The ICJ reasoned that Article 51 contemplates an armed attack by one state against another state and “Israel does not claim that the attacks against it are imputable to a foreign state.” Moreover, the ICJ held that because the threat to Israel “originates within, and not outside” the Occupied West Bank,

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-defense. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.

Despite the ICJ’s decision, Israel continues to insist that it is exercising its legal right to self-defense in its execution of military operations in the West Bank and the Gaza Strip. Since 2005, Israel slightly changed its position towards the Gaza Strip. The government insists that as a result of its unilateral disengagement in 2005, its occupation has come to an end. In 2007, the government declared the Gaza Strip a “hostile entity” and waged war upon the territory over which it continues to exercise effective control as an Occupying Power.  Lisa Hajjar expounds on these issues here.

In effect, Israel is distorting/reinterpreting international law to justify its use of militarized force in order to protect its colonial authority. Although it rebuffs the de jure application of Occupation Law, Israel exercises effective control over the West Bank and Gaza and therefore has recourse to police powers. It uses those police powers to continue its colonial expansion and apartheid rule and then in defiance of international law cites its right to self-defense in international law to wage war against the population, which it has a duty to protect. The invocation of law to protect its colonial presence makes the Palestinian civilian population doubly vulnerable. Specifically in the case of Gaza,

It forces the people of the Gaza Strip to face one of the most powerful militaries in the world without the benefit either of its own military, or of any realistic means to acquire the means to defend itself.

More broadly, Israel is slowly pushing the boundaries of existing law in an explicit attempt to reshape it. This is an affront to the international humanitarian legal order, which is intended to protect civilians in times of war by minimizing their suffering. Israel’s attempts have proven successful in the realm of public relations, as evidenced by President Obama’s uncritical support of Israel’s recent onslaughts of Gaza as an exercise in the right of self-defense. Since international law lacks a hierarchal enforcement authority, its meaning and scope is highly contingent on the prerogative of states, especially the most powerful ones. The implications of this shift are therefore palpable and dangerous.

Failure to uphold the law would allow states to behave according to their own whim in furtherance of their national interest, even in cases where that is detrimental to civilian non-combatants and to the international legal order. For better or worse, the onus to resist this shift and to preserve protection for civilians rests upon the shoulders of citizens, organizations, and mass movements who can influence their governments enforce international law. There is no alternative to political mobilization to shape state behavior.

thanks to: Noura Erakat

Jadaliyya

RESPONSE TO KAIROS PALESTINE: “The Letter of 15” and the use of U.S. military aid by Israel in Palestine – Katherine Cunningham

May 23rd, 2013

As Christian leaders in the United States, it is our moral responsibility to question the continuation of unconditional U.S. financial assistance to the government of Israel. Realizing a just and lasting peace will require this accountability, as continued U.S. military assistance to Israel — offered without conditions or accountability — will only serve to sustain the status quo and Israel’s military occupation of the Palestinian territories. ~ from Letter of 15 Church Leaders to U.S. Congress

On October 5, 2012, fifteen Christian leaders in the United States issued a letter to members of Congress that rocked American Christian-Jewish relationships.  The letter addressed the American legislators who approve all economic and military aid to Israel and are charged with the responsibility of oversight for how that 3.1 billion dollar annual aid package is implemented.

No one saw this coming.  The statement stunned the Jewish community used to the unquestioned support of the State of Israel as a preferential ally of the United States.  The 2012 denominational national meetings, with their heated debates on divestment from American corporations benefiting from supporting the Palestinian occupation, concluded with votes among the Methodists, Presbyterians and Episcopalians “to invest” in Palestine rather than divest church funds from U.S. corporations profiting from Israel’s military occupation. Those votes were influenced by threats from Jewish organizations that pro-divestment actions would cause a rupture in the decades of Christian-Jewish interfaith partnerships.

Within months of the national meetings, the heads of mainline churches and other Christian organizations turned their attention the United States Congress, asking its members to investigate human rights abuses and violations of federal laws that Congress itself had placed on all foreign military aid.  The intense reaction from Jewish organizations reveals a significant divide in nationalistic loyalties, focused on Christian U.S. citizens calling Congress to an honest examination of military aid under United States law against the actions of the country that so many Americans regard as the rightful Jewish homeland.

What the letter said about Palestinian and Israeli suffering

Each of the Christian churches and organizations that signed on (see list below) to the letter has an established ethical commitment to peacemaking in the region.  Many of these churches have actively supported a two-state solution and encouraged Israelis and Palestinians to continue to negotiate for a just peace. The ecumenical letter sought to lift up the long history of suffering in the region, noting that the longing for security and peace for both sides is genuine and that each party bears responsibility.  It affirms the deaths and horror resulting from past suicide bombings and the broad fearfulness resulting from Gaza rocket attacks upon the broader Israeli society. The Letter underscores the churches’ witness to Palestinian home demolitions, the killing of civilians by the Israeli military and other human rights violations. Its text reflects the churches’ usual “balanced” approach to suffering and security. It is careful not to characterize or criticize any faith group’s stance on the conflicts.

Kairos Palestine and the United States Congress

The Kairos Palestine confessional document insists on defining Christ’s commandment to love as inclusive of the friend and the enemy.  It also claims resistance as both a right and duty of the Christian, using love as its logic. [KP: 4.2.3] Such love is corrective, refusing to resist evil with evil, and seeking respect of all life. It affirms that one may defend his or her life, freedom and land. [KP: 4.2.5] However, with regard to the international community, Kairos Palestine challenges the international community to resist “selective application of international law” which “threatens to leave us vulnerable to a law of the jungle. It legitimizes the claims by certain armed groups and states that the international community only understands the logic of force.” [KP: 7]

The reality on the ground, asserts Kairos Palestine, is one of daily inhuman conditions, enforced by the Israeli military, including military checkpoints, the use of guns, tear gas and bombs against civilians in situations which do not rise to the level of military threat. Other policies of occupation defy and break international UN laws and, in all likelihood, United States laws, on the use of military aid provided to an allied government.  This is the logic of force, and this is why it is so important that Christian leaders spoke truth to power, in this case the United States Congress.

The ecumenical document, often referred to as “The Letter of 15, ” urges Congress to conduct “ an immediate investigation into possible violations by Israel of the U.S. Foreign Assistance Act and the U.S. Arms Export Control Act which respectively prohibit assistance to any country which engages in a consistent pattern of human rights violations and limit the use of U.S. weapons to “internal security” or “legitimate self-defense.”  These two laws form the basis for the Letter of 15 issuing a call to Congress to engage in its responsibility to investigate and report on its findings.

The Arms Export Control Act (AECA, 1976) is a comprehensive policy regulating how arms are traded, sold or supplied for a country’s lawful self-defense and imposes restrictions on the development and proliferation of certain kinds of chemical, biological and nuclear weapons.

The Foreign Assistance Act dates from 1961 and includes the separation of military and non-military aid, also creating the United States Agency for International Development (USAID).  This law states that no assistance will be provided to a government which

“engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, causing the disappearance of persons by the abduction and clandestine detention of those persons, or other flagrant denial of the right to life, liberty, and the security of person, unless such assistance will directly benefit the needy people in such country.” [Legislation on Foreign Relations,The Government Printing Office]

The 2011 U.S. State Department Country Report on Human Rights Practices covered Israel and the Occupied Territories, describing numerous human rights violations committed by the Israeli military against Palestinian civilians — many of which involve the misuse of US-supplied weapons.

When viewed through the lens of Kairos Palestine, the Letter of 15 is a collaboration of Christian organizations in the U.S. urging Congress to take responsibility for enforcing its own laws, decades old, and uphold these legal restrictions that Congress bound itself to as the legislative branch of our government, and at the same time to address how the military actions and policies of the State of Israel might be in violation of its agreements with the U.S. to abide by the laws conditional to the preferential aid it receives. Both sides are accountable for upholding United States and international laws and human rights. Congress has an accountability relationship to U.S. taxpayers to abide by our standards in providing aid. Israel is not exempt.  [KP: 1.2, 1.4]

Responses to the Ecumenical Letter

The Letter of 15 elicited a fierce exchange of accusations, as well as much commentary in both secular and religious media.  One of the most telling is the following set of interviews from the HuffPost Live: Faith Leaders on Aid to Israel, which interviewed Jewish and Christian leaders on the Letter and its impact.  Watch the video interviews on HuffPost Live Source.

Jewish organizations had swift angry reactions to the Letter.  The Rabbinical Assembly asked Congress to reject the call for oversight. The Jewish Council for Public Affairs characterized the letter signed by 15 church leaders as “a step too far,” according to JCPA President Rabbi Steve Gutow.  “The participation of these leaders in yet another one-sided anti-Israel campaign cannot be viewed apart from the vicious anti-Zionism that has gone virtually unchecked in several of these denominations.” Never mind that anti-Zionism was used as synonymous with anti-semitism, which it is not.

The Jewish Voice for Peace Rabbinical Council supported the call for Congressional oversight, noting that Mideast analyst MJ Rosenberg has rightly pointed out that such programs as Social Security and food stamps were under congressional scrutiny for compliance, asking why not the same for Israel?  “…the U.S. alone is in a place to create the kind of leverage that might challenge Israel to turn away from policies that impede the cause of a just peace for Israelis and Palestinians and true security for all who live in the region.”

At the same time, the churches which had signed the letter to Congress quickly moved to interpret its contents in light of established denominational policies. The Rev. Gradye Parsons, Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.), one of the signatories, noted that in 2010 that body had explicitly noted the problems with compliance on the part of the State of Israel with regard to military aid and directed him to communicate these issues to Congress.

In an essay published by Mondoweiss, author and activist Dr. Mark Braverman asserted that beyond the issues of interfaith bullying, the churches’ letter addresses the need to look at the unconditional financial and diplomatic support by the U.S. government for Israel under the guise of security. “We know that responsible advocacy for human rights for Palestinians and a sane, compassionate U.S. policy have nothing to do with anti-Jewish feeling,” Braverman writes, “But make no mistake—we are seeing only the beginning of the battle that will be waged to silence this church movement.”

A final word

Military aid to the State of Israel from the United States is the single most important international aid factor–beyond any government’s humanitarian aid–in addressing how the conflict between Palestine and Israel will be resolved with justice. Our government arms the Israelis, a major contribution to the power imbalance between both parties, and insures the occupier’s military and colonial initiatives and logistics will succeed.

B’Tselem’s May 2013 report on human rights violations during operation “Pillar of Defense” in November 2012 states the Israeli military killed 167 Palestinians, including at least 87 who did not take part in the hostilities, 31 of whom were minors. Should our congress not be concerned with loss of innocent civilian life? Should it not also seek firm answers about whether or not US military aid was used in Pillar of Defense?

This is precisely why the Letter of 15 is a cry for justice to the Congress and to the churches. It requests that our government honor its legal responsibilities to those supplied military aid and to the taxpayers themselves who fund it. The Letter confronts the church to keep bringing that demand forward to the legislators and candidates for office:  Have we been faithful to the laws of our land?  Will we subject aid to the State of Israel to the same scrutiny we do other countries, and even to domestic aid programs of the Federal government? Will justice and human rights be served on our own end, even as the government calls other countries to do the same in their international relations?

Kairos Palestine issues a challenge to the churches of the world: “Are you able to help us get our freedom back, for this is the only way you can help the two peoples attain justice, peace, security and love?” [KP: 6] How do we Christians in North America respond?

Rev. Katherine Cunningham is the moderator of the Israel Palestine Mission Network of the Presbyterian Church (U.S.A.). In joyful obedience to the call of Christ, and in solidarity with churches and our other partners in the Middle East, this network covenants to engage, consolidate, nourish, and channel its energy toward the goal of a just peace in Israel /Palestine by facilitating education, promoting partnerships, and coordinating advocacy.  Please visit the network’s website at www,theIPMN.org.

Signatories of the Letter of 15:

Gradye Parsons, Stated Clerk of the Presbyterian Church (USA)

Presiding Bishop Mark Hanson of the Evangelical Lutheran Church in America

United Methodist Council of Bishops President Rosemarie Wenner

Peg Birk, transitional General Secretary of the National Council of Churches

Shan Cretin, General Secretary of the American Friends Service Committee

J. Ron Byler, Executive Director of the Mennonite Central Committee U.S.

Alexander Patico, North American Secretary for the Orthodox Peace Fellowship

Diane Randall, Executive Secretary of the Friends Committee on Legislation

A. Roy Medley, General Secretary of American Baptist Churches

Geoffrey A. Black, General Minister and President of United Church of Christ

Sharon Watkins, General Minister and President of the Christian Church (Disciples of Christ)

Julia Brown Karimu, President of the Christian Church (Disciples of Christ) Division of Overseas Ministries

James A. Moos, Executive Minister for the United Church of Christ’s Wider Church Ministries

Eli S. McCarthy, Justice and Peace Director for the Conference of Major Superiors of Men

Kathy McKneely, Acting Director of the Maryknoll Office for Global Concerns

NOTE: For a comprehensive listing of responses to the Letter to Congress, please visit the United Methodists Holy Land Task Force web site here. Also, The Church Letter Reporter, here.

 

Expanding Jewish-only settlements annex fertile Palestinian land to Israel. Photo: Susanne Hoder

 

 

Street in a Palestinian refugee camp in Bethlehem. Photo: Susanne Hoder

 

thanks to: Katherine Cunningham