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Article 51: Israel's false claim

Reza Nasri
17 February 2009

Israel claims that its recent attacks on Gaza are justified under international law. In doing so, it invokes Article 51 of the UN charter which clearly recognizes the right to self-defence as an "inherent" right of States. In a statement made before the Security Council at the outset of the latest hostilities, Israel's Ambassador to the United Nations, Gabriela Shalev, clearly invoked Article 51 by claiming that:

"In its military operation, Israel exercised its inherent right to self-defence, enshrined in Article 51 of the United Nations Charter. Any other State would have acted in the same manner faced with similar terrorist threats."

Later on, the Permanent mission of Israel reiterates this position in a letter addressed to the Secretary General. Once again, Israel officially claims that:

"In response to Hamas' continuous terrorist attacks, Israel has been acting in accordance with its inherent right to self-defence enshrined in Article 51 of the Charter of the United Nations."

To counter Israel's assertion, opponents argue that the right to self-defence - while being an inherent right of States - is subject to the customary rules of proportionality and necessity. They note that Israel's massive military operations in Gaza do not meet these two conditions (the military operations are excessively violent compared to the alleged attacks that provoked them) and conclude that they are therefore illegal under international law.  

Reza Nasri is an international lawyer based at the Graduate Institute of International and Development Studies in Geneva.In my opinion, both sides miss a crucial point.

Non-applicability of Article 51 in occupied territories

The right to self-defence - as recognized by Article 51 of the Charter - is a right attributable to "States" only in their "international" relations. A State is allowed to recourse to self-defence if it is subject to another State's unlawful use of force. The situation must involve:

a) An armed attack (of sufficient gravity);

b) Conducted between States (or from one State territory) - as main subjects of international law;

c) And be of an international character.

Article 51 does not apply to a situation that involves an Occupying Power (the State of Israel) acting within occupied territories under its own authority and responsibility. In legal terms, Israel cannot invoke the right to self-defence under Article 51 to justify the use of military force in territories on which Israel itself exercises effective control, at least since 1967. (Although Israel withdrew its troops from Gaza under the "disengagement plan" in 2005, Israel's relocation of its troops from the occupied land does not end its status as the "Occupying power". Israel continuously maintained control over Gaza's borders, air and sea space, water, electricity, sewage and telecommunication systems and because of that, Gaza remains an occupied territory as defined in international law. In fact, UN Security Council resolution 1860 (pdf) issued on January 8, 2009 clearly notes that: "the Gaza Strip constitutes an integral part of the territory occupied in 1967".)

Indeed, it would be inconceivable for most of us to imagine any other country barricading a city or a district within a territory under its own watch, then use F-16 fire jets, high-tech Cobra helicopters, ground troops, cluster bombs, white phosphorus and depleted uranium ammunition, killing thousands of its inhabitants under the pretext of combating, for instance, street gang criminality. It would be even more absurd if that country justified all that by invoking an extraneous right under the UN Charter. Yet, this is exactly what Israel has done in Gaza.

Palestine (Gaza strip and the West Bank) is not yet considered an independent sovereign State - especially not by Israel. The swath of land known as "Palestine" (which encompasses Gaza) is an inhabited territory under Israeli mandate and occupation since 1967. For Israel to become entitled to invoke Article 51 of the UN Charter (which is a multilateral inter-state treaty) and benefit from its relevant rules of self-defence, Israel needs at least to recognize that it is dealing with another "State" (be it a State that directly commits armed attacks against Israel or a State whose territory is being used by an autonomous hostile group to mount attacks against Israel). But Israel cannot persistently rebuff Palestine's Statehood on one hand, and, on the other hand, treat Palestine as a State whenever it needs to utilise the Charter to legitimise its use of force against.

In other words, Israel's self-defence argument entails the precondition of recognising Palestinian Statehood; while not doing so entails setting the Charter's legal subterfuges aside and solely complying with the strictures of Humanitarian law (especially the Geneva Conventions) regarding occupation.

The world court's position

In its July 2004 advisory opinion on the Legal Consequences of the Construction of a Wall, the International Court of Justice (ICJ) had already established the non-applicability of "self-defence" under Article 51 in the situation between Israel and the Occupied Territories (a key point that most commentators seem to have forgotten). Just as it claims today, Israel had argued in the Wall case that the construction of a wall around the West Bank was an act of self-defence consistent with Article 51 of the Charter. According to Israel, Article 51 supported its right to build the wall to protect itself against terrorist attacks emanating from the occupied territories.

But the Court dismissed this argument as follows (pdf):

"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. 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. [...] Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case" (emphasis added by author).

A fortiori, the Court's position is also valid regarding the recent situation in Gaza.

In fact, there seems to be a growing consensus among prominent international law experts regarding the issue. In a document entitled "The Chatham House Principles of International Law on the Use of Force in Self-Defence", the Royal Institute of International Affairs also confirmed the non-applicability of Article 51 by stressing that "unless an attack is directed from outside territory under the control of the defending State, the question of self-defence in the sense of Article 51 does not normally arise".

The impermissible confusion: Jus ad bellum vs Jus in bello

The law of the use of force is composed of two distinct branches:

a) the law governing the recourse to force (jus ad bellum) and;

b) the law governing the conduct of hostilities (jus in bello).

The first set of laws refers to the reasons States may invoke to justify war, while the second set governs the means they may adopt in executing war or the way they should act in a post-war situation, such as occupation. The jus ad bellum rules are mostly enshrined in the UN Charter (i.e. article 2(4) and article 51), while the jus in bello rules are mostly to be found in the four Geneva Conventions, the Hague regulations and relevant customary norms. Self-defence logically belongs to the realm of jus ad bellum while "occupation" is naturally governed by the jus in bello.

As Georges Abi-Saab - Professor Emeritus at the Graduate Institute of International Studies in Geneva - explained in his oral pleading before the ICJ in the wall case:

"[S]elf-defence does not belong to international humanitarian law or the jus in bello, but to the jus ad bellum [the branch of law that defines the legitimate reasons a State may engage in war]. Israel makes here an impermissible confusion between the two branches of the law of war that have to be kept radically apart".

As it did in the wall case, Israel still attempts to sustain that confusion, for good reason.

Israel has already exhausted its right to self-defence when it pre-emptively seized the West Bank and Gaza from neighbouring belligerent States in an international conflict in 1967. Since then, the only set of laws that govern the Israeli-Palestinian situation is the customary and treaty-based norms of "Humanitarian law" that regulate occupation (Jus in bello). According to the applicable law, Israel is not only proscribed from harming the inhabitants of these territories, but it is obliged to ensure their safety and security (Article 43 of The Hague regulations). Israel is also under the obligation to provide protection to their private properties (Arts. 46 and 47 of the Fourth Geneva convention), and to keep intact their "public buildings, real estate, forests and agricultural estates" (Art. 55 of the Fourth Geneva convention).

Israel's recent massive bombardments and use of heavy artillery against Gaza cannot be reconciled with these obligations. In fact, Israel's recent actions constitute, under Article 147 of the Fourth Convention, as well as Article 85 of Protocol I and Article 8 of the Rome Statute, grave breaches of international law which entail individual criminal responsibility.

By constantly alluding to the notion of self-defence as per Article 51 and by framing the military operations in Gaza solely in terms of necessity and proportionality, even the opponents of Israel unconsciously affirm the "impermissible confusion" that Israel is deliberately trying to disseminate.

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