Israel’s wall is justified as an act of self-defence

Self-Defence and International Terrorism

Self-Defence and Self-Determination

Self-Defence and Occupied Territory

Self-Defence and the Wall

One of the first things that spring to mind when people think of Israel and Palestine are acts of "terror". In the Middle East, this type of violence almost always dominates the headlines.

Instead of focusing on the root causes of the violence and its underlying dynamics, the media tend to focus on individual acts of violence, until the violence itself becomes the story. This is the nature of news. Violence sells. Historical, political and legal facts do not.

More recently, some journalists have been asking questions beyond who did what violent act, where and when, and have placed much more emphasis on asking why such acts take place.

More often than not, the answer to that question lies in Palestinian resistance to Israel's prolonged and belligerent military occupation of East Jerusalem, the West Bank and the Gaza Strip. 

In its written statement, Israel argued that it is building the Wall to stop "acts of terrorism". However, Israel did not justify this by going into any substantive detail. It simply alleged that it had an inherent right of self-defence according to Article 51 of the UN Charter. It also cited two UN Security Council resolutions (1368 and 1373) passed in the immediate aftermath of the September 11 attacks, which Israel claimed allowed it to resort to force in self-defence against "terrorist" attacks.

The International Court of Justice held that these resolutions were not applicable to this particular case because the construction of the Wall in Occupied Palestinian Territory was different from the concept of self-defence contemplated by those resolutions.

Self-Defence and International Terrorism

Operative paragraph 1 of UN Security Council resolution 1368 "unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security".

Resolution 1373, adopted by the Security Council on 28 September 2001, reaffirms resolution 1269 adopted by it on 19 October 1999. This resolution, whilst condemning "all acts of terrorism", is geared towards eliminating, combating and suppressing international terrorism.

Resolution 1373, also cited by Israel in its written statement, reaffirms "the inherent right of individual and collective self-defence as recognized by the Charter of the United Nations, as reiterated in resolution 1368 (2001)".

Resolution 1368 concerns international terrorism - of the kind used by al-Qaeda and its affiliates in Bali, Mombassa, Madrid, Aden and elsewhere.

The "Declaration on the Global Effort to Combat Terrorism", adopted by the Security Council in resolution 1377 on 12 November 2001, is also concerned with acts of international terrorism.

However, Palestinian resistance to Israel's military occupation is something quite different. It is no longer international in character, and has not been so since the mid-1980s. The conflict between Israelis and Palestinians in the Occupied Palestinian Territories is not an international armed conflict between two States. It is a conflict between an Occupying Power (Israel) and an occupied people (Palestinians).

This was the finding of the March 2001 Report of the UN Human Rights Inquiry Commission into violations of Human Rights in the Occupied Arab Territories, including Palestine. The Commission found (para. 39) that:

“…there is no international armed conflict in the region, as Palestine, despite widespread recognition, still falls short of the accepted criteria of statehood. The question then arises as to whether there is a non-international armed conflict, defined by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in the Tadic case, as “protracted armed violence between governmental authorities and organized armed groups”.

As this Commission stressed, Palestine is not a State for international law purposes. Nor is it a fully fledged member of the UN. It has observer status instead. Israel has no sovereignty over the West Bank (or over East Jerusalem, the Gaza Strip and Syria's Golan Heights).

Resolutions 1368 and 1373 do not concern situations of attacks coming from Occupied Territory into the territory of the Occupant. And it was this consideration, as Dutch Judge Kooijmans noted in his Separate Opinion, that proved decisive in determining the irrelevance of those resolutions.

He wrote (para. 36):

“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. And Israel does not claim that these acts have their origin elsewhere. The Court therefore rightly concludes that the situation is different from that contemplated by resolutions 1368 and 1373 and that consequently Article 51 of the Charter cannot be invoked by Israel”.

Self-Defence and Self-Determination

UN Security Council resolutions 1368 and 1373 do not specifically authorise Israel to use force against a people with the right to self-determination. The use of such force is prohibited by international law.[i][i] The International Court of Justice held that violations by Israel include “the obligation to respect the right of the Palestinian people to self-determination”, which it described as an obligation erga omnes (para. 155).

Even if it could be argued that Israel does have an inherent right of self-defence from attacks emanating from territory it exercises effective control over (according to Article 51 of the UN Charter), then what form of redress would the Palestinian people have from such attacks?

Article 51 recognises that a right of self-defence arises if an armed attack occurs against a member of the UN. As membership is restricted to States in Article 4 of the Charter, it follows that the attack must be against a State.

Article 51 would therefore not be applicable to the Palestinian people who are stateless. It would give the Occupying Power the right to continue subjugating the occupied people by claiming “an inherent right of self-defence” whenever, and wherever, there is resistance to its rule - which would lead to a wholly unsatisfactory situation.

Surely the only logical solution is for Israel to withdraw its armed forces from Occupied Palestinian Territory. Then the resistance would dissipate.

During the era of decolonisation in the 1960s and 1970s, a number of UN resolutions were adopted providing that peoples with a right of self-determination have a right to struggle to exercise it.

Difficulties arose over the precise meaning of the word “struggle”. Developing States understood it to mean “armed struggle” and developed States “peaceful struggle”.

The Palestinian people use both means against Israeli occupation. Non-violent resistance is by far the most common method used, but it is also deemed the least newsworthy. It is only when Palestinian resistance is violent that it attracts attention.

Whatever the precise meaning of the word “struggle”, it is clear that they have such a right. They are not compelled to accept Israel’s armed and increasingly violent occupation indefinitely. It is therefore clear that Palestinians are entitled to resist the occupation. The difficulty arises as to the legality of the tactics used by some resistance movements such as “martyrdom operations” or “suicide bombings”.

Such tactics, particularly when they target non-combatants would, irrespective of the legitimacy of the struggle[ii][ii], violate several provisions of international humanitarian law and would also raise serious questions under human rights law. But the illegality of such tactics cannot be used as an excuse by the Occupying Power to commit illegal acts itself, such as annexing territory, demolishing houses, carrying out population transfers, committing torture, and resorting to other forms of inhuman and degrading punishment.

Nevertheless, both Israel and the Palestinians are under an obligation to scrupulously observe the rules of humanitarian law. As Judge Higgins stressed in her Separate Opinion, “the protection of civilians remains an intransgressible obligation of humanitarian law, not only for the occupier but equally for those seeking to liberate themselves from occupation”.

Self-Defence and Occupied Territory

Article 51 of the UN Charter provides:

“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, until the Security Council has taken measures necessary to maintain international peace and security” …

The International Court of Justice, in Nicaragua v USA (ICJ Reports 1986), clarified that the definition of an armed attack:

"must be understood as including not merely action by regular armed forces across an international border, but also 'the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to … an actual armed attack … or its substantial involvement therein".

This definition of an armed attack reflects customary international law.

In its opinion on the Wall, the ICJ held that Article 51 of the UN Charter "thus recognizes the existence of an inherent right of self‑defence in the case of armed attack by one State against another State." The Court noted that "… Israel does not claim that the attacks against it are imputable to a foreign State".

It therefore concluded that Article 51 had no relevance to the case since it is Israel that 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".

In its written statement, Israel confused the laws governing the resort to armed conflict (jus ad bellum) with the laws governing the actual conduct of armed conflict (jus en bello). Once “major combat operations” begin, the jus en bello takes over from the jus ad bellum.

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

“One of the justifications, self-defence, does not belong to international humanitarian law or the jus en bello, but to the jus ad bellum. Israel makes here an impermissible confusion between the two branches of the law of war that have to be kept radically apart. Once an armed conflict is brought into being, the jus in bello (or international humanitarian law) comes into play, as the lex specialis (a specific law that prevails over general law) governing the ensuing situation regardless of the rules of the jus ad bellum”.

He continued:

”Moreover, logically, how can one say that a state exercises self-defence against a territory under its own military occupation, that is under its effective control, and in which it has the authority and even the obligation to ‘ensure public order and safety’ according to Article 43 of the Hague Regulations”?

Article 43 of the Hague Regulations provides:

“The authority of the legitimate power having in fact passed into the hands of the occupant, that latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”.

In his recitation of Article 43 of the Hague Regulations, Professor Abi-Saab used the unofficial, and inaccurate, English translation of Article 43 (which is cited above).

The Hague Regulations are authentic in French only. The inaccuracy relates to the word “public order and safety”. This is a mistranslation of the French “l’ordre et la vie publics” (public order and life) which conveys the idea that an occupant must preserve the existing situation in Occupied Territory.

The term “safety” suggests, and is used by Israel, as if it allows an occupant to take punitive or restrictive measures against the population in order to protect itself.

The French phrase has been more accurately rendered (even by some judges of the Supreme Court in Israel) as an obligation to preserve the “community life” of the population of the Occupied Territory.

In the opinion of Yoram Dinstein, Yanowicz Professor of Human Rights at Tel-Aviv University, and founder and editor of the Israel Yearbook on Human Rights:

"It is not enough for the Occupying Power to conscientiously protect life and limb in the Occupied Territory. The Occupant is not allowed to observe with equanimity even the phenomenon of economic or social chaos causing misery to the civilian population. This is important to bear in mind, inasmuch as the inhabitants of the Occupied Territory are enemy nationals, and the Occupying Power may be tempted to sit idly by when hardships (unrelated to safety and security) befall them. Under the first part of Article 43, a duty devolves on the Occupying Power to ensure public life (and not only public order) in the Occupied Territory".

Since Israel is occupying the Palestinian Territories, it is responsible for what happens there. This is because it is Israel that has effective control over the territories, its peoples and its resources, and has the responsibility to ensure public order and life.

As Alan Vaughan Lowe - Chichele Professor of International Law at Oxford University, and co-editor of the British Yearbook of International Law - advocated before the ICJ: “Israel, as Occupying Power, carries the legal responsibility to ensure basic human rights in the Occupied Palestinian Territory. It cannot claim the rights of a military occupant without accepting the corresponding responsibilities”. 

He then told the Court:

“The Palestinian Authority has consistently condemned terrorist attacks on Israeli civilians; and it is as absurd as it is offensive to imply that all Palestinians are engaged in a murderous conspiracy to attack Israel. To impose the Wall, and all the consequent restrictions on movement and access to property, jobs, welfare, education and families, as punishment on the whole Palestinian population is unfair, unprincipled, and illegal”.

It is essential that journalists are aware of the occupied status of Palestine, and of Israel’s concomitant responsibilities under international law which preclude it from asserting a right to self-defence under Article 51 of the UN Charter from territory that is under its effective control.

Self-Defence and the Wall

Israel’s argument that the Wall is a legitimate form of self-defence was also rejected by the International Court of Justice. This is partly because the route of the Wall loops around major Israeli settlement blocs in the West Bank which are illegal under international law (see below).

In his Declaration, US Judge Thomas Buergenthal found that the segments of the Wall being built by Israel to protect settlements were ipso facto in violation of international humanitarian law. He wrote in paragraph 9:

“… given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the Wall, I seriously doubt that the Wall would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defence”.

The ICJ was not convinced that the course Israel chose for the Wall was necessary to attain its security objectives. It concluded that:

"The Wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a Wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments (paragraph 137)".

For further reading:

See the Separate Opinion of Judge Kooijmans at the following link:

http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm

See UN Report: Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine at the following link: http://www.mideastweb.org/unhr2001.htm

See Christine Gray, “The Use of Force and the International Legal Order”, in Malcolm D. Evans (ed.) International Law (Oxford University Press 2003) at p. 594;

See Heather A. Wilson, International Law and the Use of Force by National Liberation Movements, (Oxford: Clarendon Press 1988) at pp. 91 - 103;

See George Abi-Saab, “Wars of National Liberation in the Geneva Conventions and Protocols”, 165 Recueil Des Cours (IV 1979) at pp. 353 - 445, especially pp. 369 - 372.

See Iain Scobbie, "Words my mother never taught me – 'in defence of the International Court'", in the American Journal of International Law (2005) pp. 76 - 88.

See Michael Akehurst, "Nicaragua v. United State of America", in volume 27 of the Indian Journal of International Law (1987) pp. 357 - 384;

See Edmund H. Schwenk, “Legislative Power of the Military Occupant under Article 43, Hague Regulations”, in volume 54 of the Yale Law Journal (1944 - 1945) pp. 393 - 416.

See Yoram Dinstein, "The Israel Supreme Court and the Law of Belligerent Occupation: Article 43 of the Hague Regulations", in volume 25 of the Israel Yearbook on Human Rights (1995) at pages 1 - 20; quote from p. 16.

See the Declaration of US Judge Thomas Buergenthal at paragraph 9 of the ICJ's web site www.icj-cij.org.