Palestine’s Right to Self Determination or Israel’s Right to Self Defense?

An attack to be legitimate under Article 51 of the UNC must be necessary, immediate and proportional to the attack of the perpetrator.

Authors: Saurabh Sharma and Aditya Jain*

On the night of 7th October what unfolded was an indiscriminate attack on the State of Israel by the militant group Hamas. The result was a mass killing, torture, rape and abduction of Israeli citizens in the most inhumane manner and a subsequent declaration of a “long and difficult war” by the PM Netanyahu against the Hamas group. The Israel Defence Forces (IDF) has gone all out against their siege of Gaza with an indefinite blockade cutting out any supply of water, food or electricity. The Israeli forces have already under their control a significant piece of northern Gaza, posing a significant threat to the territorial integrity of the Palestine State which is in violation of Article 2(4) of the UN Charter (UNC), although the statehood of Palestine within the context of Public International Law is a matter of debate.

Hamas perpetuated the attack under the guise of right to freedom and self-determination (a principle well enshrined under Article 1(2) of the UNC) of the Palestinians’ and against what they view as criminal acts by Israel. However, the firing of thousands of rockets was an indiscriminate “use of force” which was “unilateral” and “unprovoked” and therefore a gross violation of the principles of international law. Since the ten days conflict between Israel and Palestine in 2021, there has been a temporary suspension of hostilities mediated by Egypt with relative peace between the two States since then. Therefore, there was no sense of immediacy, which further discredits their attack on Israel.

Can the actions of Hamas be attributed to the State of Palestine?

For invoking the element of responsibility upon Palestine for the use of force, a link has to be created between the Palestine State and the actual perpetrators. Hamas has been the de facto administrator of the Gaza Strip since 2007 which is still recognized to be a Palestinian Authority under the control of Fatah as per the Oslo Accords of 1993. However, the sole reason that these are non-State actors and the territory of Gaza has gone rogue and thus don’t derive any authority from the legal order as it exists within the Palestinian municipal legal system is not a sufficient excuse to not create an inextricable link between Hamas and Palestine considering that Palestine ought to have control over such rogue elements. If tomorrow Pakistan claims that it had no role nor control over a bombing in India by a non-State Actor stemming and thriving in Pakistan, it would not serve as a sufficient excuse to abolish Pakistan of its international obligations and its responsibility as a State. Therefore, taking into account that Palestine is considered as a jurisdiction with limited attributes of a state within the edifice of the UNO, it thus owes a duty which includes that its territory is not a haven for militant activities causing a disruption to the international legal order. Additionally, Palestine being a member of the International Criminal Court (ICC) since 2015, an investigation lead by the ICC can be made against the State of Palestine in the aftermath of this conflict to attach and ascertain liability to the real perpetrators.

Is Israel exercising its Right to Self-Defense Proportionate?

What ensued after the attack of Hamas was Israel exercising its right to self-defense and launching a counter operation on Hamas “Iron Swords”. The attack of Israel was backed by major western powers supporting it including India. The US has sent its biggest aircraft carrier, Gerald F. Ford, near the Israel’s coast as a show of support with US President Joe Biden warning that no other party hostile to Israel should seek “advantage” of this situation. However, it can be questioned whether an all-out operation by Israel, which included bombing of Mosques, homes, schools and now an apparent bombing of a civilian hospital in Gaza leading to a death of thousands of innocent civilians, be qualified as a right to self-defense under Article 51 of the UN Charter. Therefore, if Israel had the knowledge and intention (dolus directus) of killing innocent civilians and in furtherance of it perpetuated attacks against them, then the same raises a question whether their attack squarely falls within the ambit of self-defense or can be categorized as war crimes. China has already called Israel’s actions in Gaza are “beyond self-defense” with the US President Joe Biden claiming that Israel’s reoccupation of Gaza will be a “big mistake”. An attack to be legitimate under Article 51 of the UNC must be necessary, immediate and proportional to the attack of the perpetrator, and should not be exercised beyond limits, with immediate cessation after any anticipation of threat is displaced. There is no dispute over whether the Israeli attack was necessary and immediate, however much remains unanswered, and Prime Minister Benjamin Netanyahu’s statement that Israel’s response to Hamas will “change the Middle East” raises eyebrows. In its aid, Israel has claimed that the killing of innocent Palestinians is an act of Hamas, by using them as “human-shields” and using the civilian infrastructure like mosques and schools as their base to launch attacks against Israel. With more than a million Palestinians, comprising approximately fifty percent of the total population of Gaza, asked to flee to South Gaza, Israel plans to do something unprecedented, which may inevitably escalate the war by opening fronts from the north Israel. Hezbollah has already pledged to support Hamas.

Can an Action be taken Against Iran for supporting Hamas?

The Iran Government has welcomed the Hamas attack on Israel. The Central Intelligence Agency (CIA) of the United States on more than one occasion stated that Hamas has received military support from Iran, fueling its ongoing proxy war with the State of Israel. Whether an attack on Israel by Hamas militants with the use of Iranian weapons, intelligence and training can make Iran a “direct” complicit or not further complicates the conflict, with the former leading to further aggression and tension in the Middle East. Israel has not previously shied from bombing Iran in 1981 when it perceived Iran’s nuclear reactor to be a direct threat to the existence of the Israeli State. Then too, Israel claimed that it was bombing Iran under its right to self-defense since all negotiations with Iran for a peaceful agreement broke down. However, this time Iran has warned Israel of opening of “other fronts” in case of escalation of aggression from Israel.  

The Two State Solution: An Eventual Death?

There has been multifold efforts in the last three decades to solve the Israel-Palestine conflict with an amicable two State solution. However, beginning from Madrid negotiations to the latest 2013-14 peace talks mediated by John Kerry, then US Secretary of State, all peace talks and negotiations till date have failed. The failed negotiations have only fueled the angst of the Palestinians. The Palestinian Authority has refused to make a compromise over the city of East Jerusalem, saying that they have already compromised by agreeing to West Bank and Gaza, and there can be no compromise to a compromise. This has been further exacerbated by the US recognizing Jerusalem, a city falling in the West Bank, as Israel’s capital in 2017, a city claimed by Israel and serving as its official capital since 1980, albeit with limited recognition. With no peace talks in almost a decade, the two State solution proffered through UNSC Resolution might see an eventual demise. Much remains to be seen.

*Aditya Jain, 3rd Year Student of Rajiv Gandhi National University of Law