The Limits of Self-Defence
By Aftab
Alam, New Age Islam
20
November,2023
The
Israeli counteroffensive in Gaza has raised questions about the limits of force
in self-defence under international law. This article seeks to answer these
questions, including whether international law grants unbridled rights to the
victim state, what qualifies as a legitimate armed response, the duration of
Israel’s ability to act in self-defence, and whether indiscriminate force is
appropriate.
--------
Main
Points
· Most states and scholars support
Israel's right to defend itself from armed attacks but are sceptical about the
legality of Israel's Gaza bombardment in the name of self-defence.
· Self-defence measures can only be used
to "repel" or diminish an attack and must end once the attacked state
has successfully resisted the assault.
· The Israeli attacks on Gaza violate
the principle of lawful self-defence, resulting in civilian casualties, as per
the International Court of Justice's Nicaragua case.
· Israeli forces are targeting
hospitals, ambulances, and their personnel in Gaza, despite IHL's prohibition.
· The Israel-Hamas conflict underscores
the inability of international law to hold powerful nations accountable for
force violations and IHL breaches, indicating a collapse in legal order for
lasting peace.
------
Ever
since Palestinian Islamist group Hamas launched attacks on Israel on October 7,
firing a barrage of rockets followed by armed groups entering Israeli territory
by land, air, and sea, which killed more than 1,400 people, including civilians
and soldiers, and took around 240 hostages, Gaza is being bombarded by Israeli
forces round the clock, killing more than 10,000 Palestinians and reducing a
large part of it to rubble.
Israel’s
counter-offensive in Gaza has raised multiple legal questions concerning the
conditions and limits of the use of force in self-defence under international
law. Does international law grant unbridled rights to the victim state, or is
there any limit to it? What could be the objective of a legitimate armed
response in self-defence? How long can Israeli action in self-defence last?
Does international law of self-defence permit Israel to use indiscriminate
force to obliterate Hamas completely? I seek to answer some of these questions
in this article.
Israel’s
right to defend itself as a victim of armed attack has been unequivocally
acknowledged by most states and scholars, as it is well established under
international law. However, they are equally sceptical about the legality of
Israel’s brutal bombardment of Gaza in the name of self-defence. Belgian Prime
Minister Alexander De Croo, for example, recently said that he has “condemned
Hamas’ attack and supported Israel’s right to defend itself, but what we see in
Gaza is no longer proportional”.
It
must be noted that the exercise of the right of self-defence by a victim state
against the aggressor state does not represent a situation of anarchy, and in
order to be lawful, it must meet certain conditions based on both treaty and
customary law.
Firstly,
the force used in self-defence must only be directed to ‘repel’ the attack or
to remove its consequences. All the measures undertaken in self-defence must be
terminated once the aggrieved state has successfully repelled the armed attack.
The right of self-defence cannot be used as a measure of retribution to
‘punish’ an aggressor. In light of the St. Petersburg Declaration, the only
legitimate object the state fighting in self-defence should endeavour to
accomplish during war is to weaken the military potential of the aggressor
sufficiently to preserve its independence. Accordingly, the only objective that
Israel can legitimately pursue against Hamas is to halt and repel an ongoing or
imminent attack. But contrary to this, Israel has declared the total
destruction of Hamas as its war objective.
Secondly,
the lawful use of force in self-defence requires compliance with the
universally recognised elements of necessity and proportionality. The
International Court of Justice (ICJ) in Nicaragua (1986) case asserted that the
use of force in self-defence must be “proportional to the armed attack and
necessary to respond to it.” The scale and effects of defensive force must not
be excessive or greater than what is necessary to repel the attack or remove
the imminent threat. The defensive action resulting in large numbers of
civilian casualties is considered disproportionate. The ongoing Israeli attacks
on Gaza are a clear violation of this basic principle of the law on
self-defence.
Additionally,
under international humanitarian law (IHL) fundamental principle of
proportionality, an attack is prohibited that may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian
objects, or a combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated (Article 57 of (AP I)).
Israel is thus obliged to take all precautionary measures to ensure that the
collateral damage to civilians and civilian objects in its aerial bombing is not
excessive. But the alarming civilian death toll and destruction of civilian
properties in Gaza tell us an entirely different story.
The
disproportionate attacks are also treated as particular forms of indiscriminate
attacks, which are prohibited under the IHL, in addition to the prohibition on
direct attacks against civilians and civilian objects. According to Article 51
of AP I it is prohibited to attack by bombardment or by any methods or means of
warfare that treat as a single military objective a number of clearly separated
and distinct military objectives located in a city, town, village, or other
area containing a similar concentration of civilians or civilian objects.
Israeli air strikes causing mass civilian casualties indicate that it has
failed to take feasible precautions to spare civilians as required under IHL.
Thirdly,
the war of self-defence must be conducted in strict compliance with the
fundamental principles and rules of IHL. In its Legality of Nuclear Weapons
Advisory Opinion (1996), the ICJ observed that the use of force in
self-defence, in order to be lawful, must also be conducted in strict
compliance with the requirements of the law applicable in armed conflict. IHL
seeks to mitigate the effect of war by limiting the use of violence in armed
conflicts necessary to achieve the war objective, which can only be limited to
weakening the military potential of the enemy. It protects those who do not or
no longer directly participate in hostilities and limits the selection of
methods and means of warfare.
Under
IHL, attacks on hospitals, ambulances, and their personnel, including
humanitarian and relief personnel, are specifically prohibited. But the Israeli
forces are relentlessly targeting them with impunity. In Israeli attacks, a
total of 22 of the 35 hospitals and more than 50 out of the 75-primary health
centres in Gaza have been forced out of operation, and more than 135 medical
personnel have been killed. The attacks on hospitals have not only endangered
the lives of thousands of patients but also an estimated 122,000 displaced
Palestinians sheltering in those facilities during the unrelenting bombing by
Israel. More than 100 United Nations humanitarian workers have been killed
since the Israel-Hamas war began in Gaza, which is, according to the U.N.
secretary general, António Guterres, more “than in any comparable period in the
history of our organisation”.
The
order issued by the Israeli authorities for the evacuation of more than one
million Palestinians to leave northern Gaza within 24 hours, coupled with the
complete siege, explicitly denying them food, water, electricity, and other
goods essential for their survival, is incompatible with IHL, which prohibits
the employment of the starvation of the civilian population as a method of warfare
under Article 54(1) of AP I. The forced relocation of civilian populations by
Israel amounts to a crime against humanity and a war crime of collective
punishment under the Statute of the International Criminal Court (ICC).
The
protection of civilians and civilian objects from the harmful effects of
hostilities is one of the fundamental rules of IHL. It even provides greater
protection for vulnerable groups among civilians, such as women, children,
refugees, and displaced persons, because of the additional risks that they may
face during armed conflict. However, they are disproportionately bearing the
brunt of the ongoing armed conflict in Gaza. Among the more than 10,000
civilians killed in Gaza in Israeli attacks are 4,800 children and 3,100 women.
According to the World Health Organisation (WHO), on average, one child is
killed and two are injured every 10 minutes in Gaza. The number of injuries has
reached 28,200, with 70% being children and women. There are also more than
2,260 people missing, with a majority “presumed to be trapped under rubble.
Israel
is brazenly violating all conditions of lawful use of defensive force and the
basic principles and rules of IHL applicable in this conflict with complete
impunity. The ongoing Israel-Hamas war has exposed, once again, the weakness of
international law to hold powerful countries accountable for brazenly violating
international law on the use of force and grave breaches of IHL and marks the
complete collapse of the international legal order, which is necessary to
achieve a durable peace in the region.
…
*
The author teaches international law at Aligarh Muslim University and heads its
Strategic and Security Studies Programme.
-----
URL:
New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism