INTERNATIONAL LAW SERIES: THE RIGHT TO SELF DEFENSE
NGO MonitorJanuary 13, 2010International Law, Human Rights, and NGOs Series
- The right to self-defense, including the right to combat terror, is a cornerstone of international law, enshrined in the UN Charter (Article 51) and numerous Security Council Resolutions.
- In order to delegitimize Israel’s self-defensive measures, many NGOs have issued statements distorting international law or even inventing legal bases under which Israel’s rights are denied.
- Al Haq and PCHR falsely claim that Israel cannot invoke self-defense in response to attacks from non-state actors in occupied territory. In making this legally incoherent argument, these NGOs misinterpret key passages in international law.
- A second approach, taken by Human Rights Watch and B’Tselem, alleges without any evidentiary basis that Israel’s exercise of self-defense is merely a pretext for punishing the Palestinians. There is no legal doctrine that establishes that an otherwise legal military action in self-defense becomes illegal simply because one of its alleged motives is to “punish” the aggressor.
- Other groups, including Oxfam and FIDH, pay lip service to Israeli self-defense, but reject every Israeli action as a “violation of international law.”
- The NGOs make no realistic suggestions of what would be considered lawful and effective measures, effectively nullifying the right to self-defense.
- Palestinian NGO, the Palestinian Center for Human Rights, receiving hundreds of thousands of dollars from European governments (EU, Denmark, Norway, Ireland, Netherlands), labels direct attacks on Israeli civilians as acts of “resistance.”
Background: The Right of Self-Defense
Between 2000 and May 2009, Palestinian attacks killed nearly 1,200 Israelis and injured close to 10,000, through suicide bombings, rocket and mortar attacks, shootings, stabbings, bombings, and vehicular assaults. In executing these attacks, Palestinian groups deliberately targeted Israeli civilians and population centers. In defense, Israel applied a vigorous counter-terrorism strategy.
Under Article 2(4) of the United Nations Charter, states are generally prohibited from engaging in the use of force against other states:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Three exceptions apply to this prohibition – self-defense, consent, and Security Council authorization pursuant to Article 42 of the UN Charter. The right to self defense is an inherent concept in law “and is fundamental to the system of states.” It is recognized and protected by Article 51 of the UN Charter:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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 application of the right to combat terrorism was further reinforced by international practice following the 9/11 terror attacks on the United States. Two Security Council resolutions issued pursuant to Chapter VII of the UN Charter reflect this consensus:
Security Council Resolutions 1368 (2001)
Recogniz[es] the inherent right of individual or collective self-defense in accordance with the Charter;
. . .
Expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations
Security Council Resolution 1373 (2001)
Reaffirming further that such acts, like any act of international terrorism, constitute a threat to international peace and security,
Reaffirming the inherent right of individual or collective self-defense as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001),
Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts . . .
In order to delegitimize Israel’s self-defensive measures, many NGOs have issued statements distorting international law or even inventing legal bases under which Israel’s rights are denied. These publications underpin campaigns to block any means by which Israel can defend its citizens from attack, such as Amnesty International’s call for an arms embargo against Israel.
NGOs have adopted several approaches to carry out this strategy: 1) denying Israel’s right to self-defense; 2) claiming the real intention behind Israeli counter-terror operations is to “punish” the Palestinians, thereby seeking to portray Israeli self-defense as illegal collective punishment; 3) paying “lip service” to the right of Israeli self-defense while denying it in fact; and 4) characterizing deliberate Palestinian attacks on Israeli civilians as self-defense.
The following examples analyze each of these approaches:
Approach 1: Article 51 of the UN Charter is inapplicable; therefore, Israel has no right to self-defense and consequently, no right to engage in military operations to protect its citizens.
Al Haq (April 6, 2009)
Israel’s claim to ‘self-defence’ as the legal pretext for ‘Operation Cast Lead’ . . . was not the first time that Israel has cited Article 51 of the UN Charter as justification for military operations or unlawful acts within or against the Occupied Palestinian Territory (OPT);
. . .
Al-Haq deplores and condemns Israel’s continuous invocation of Article 51 of the UN Charter as legal justification for disproportionate and often indiscriminate military operations in or against the OPT . . . [Al Haq] would like to make it emphatically clear that Article 51 of the UN Charter cannot be invoked as justification for military operations within or against the OPT.
Palestinian Center for Human Rights (PCHR) (July 8, 2009)
The Wall and the associated administrative regime violate Palestinians’ fundamental right to self-determination . . . The State of Israel is not entitled to invoke Article 51 of the UN Charter (the right to self defense) with respect to the occupied Palestinian territory.
In this approach, NGOs make several specious claims relying on controversial interpretations of international law. These arguments are largely incoherent : They claim that because Israel is being attacked by non-state actors (i.e., Palestinian terrorists, Hezbollah) or that because those attacks are launched from “occupied” territory, Israel is not entitled to invoke Article 51 of the UN Charter and therefore is legally prohibited from engaging in the use of force. Additionally, several NGOs claim that the Palestinian “right to self-determination” trumps any exercise of Israeli self-defense it may be entitled to under Article 51 (see also Approach 4).
The right to self defense is rooted in customary international law
Contrary to these NGO claims, the right of self-defense does not solely emanate from Article 51 but is rooted in customary international law. Therefore, Israel enjoys customary self-defense rights regardless of whether Article 51 is applicable.
If Article 51 is not applicable, there is no prohibition on the use of force
The NGOs adopting this approach fail to recognize the full implications of their claims that Israel is not entitled to use force under Article 51 because Israel is not fighting another state. If the UN Charter’s prohibition only applies to force used against other states and Palestinian terror organizations are not state actors, then Israel does not need to invoke self-defense rights in using force.
Under the principle of the Lotus case, states are entitled to engage in any action that is not specifically barred by international law. Accordingly, as noted by scholars such as Avi Bell and Marko Milanovic, “[t]here is no prohibition on states to use force against non-state actors, if that use of force does not infringe on the sovereignty of any other state.” Under this view, the use of force by Israel in Gaza or against Palestinian terror groups in the West Bank is lawful even without invoking any rights of self-defense, and Israel is also immune from requirements of Article 51 such as informing the Security Council of its actions.
NGO interpretations of Article 51 are wrong
Nevertheless, even if Israel needed to invoke rights of self-defense, NGO interpretations of Article 51 are simply wrong. As noted by Rosalyn Higgins, a justice on the International Court of Justice (ICJ) and an authority on international law, “[t]here is, with respect, nothing in the text of Article 51 that thus stipulates that self-defence is available only when an armed attack is made by a State.” She further notes that
I also find unpersuasive the Court’s contention that, as the uses of force emanate from occupied territory, it is not an armed attack “by one State against another”. I fail to understand the Court’s view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory — a territory which it has found not to have been annexed and is certainly “other than” Israel.
(See also the dissent of Justice Thomas Burgenthal and the decision of the Eritrea-Ethiopia Claims Commission – described below.)
Indeed, the rights of states to respond with force when attacked by terrorist groups is firmly anchored in international practice, as seen, for example, by the universal acknowledgement of the United States’ right to use military force against al Qaeda in the wake of the 9/11 terrorist attacks.
Approach 2: Characterize Israeli self-defensive measures as intended to “punish” the Palestinians.
Joint Statement by Human Rights Watch, Gisha, and Physicians for Human Rights-Israel (May 13, 2008)
Human Rights Watch, Gisha, and Physicians for Human Rights-Israel unreservedly condemn the Palestinian rocket and other attacks against Israeli civilians, such as the mortar attack that killed a civilian in Kfar Aza on May 9, which violate the international legal prohibition against attacks that deliberately target or indiscriminately harm civilians. However, unlawful attacks by one side to a conflict do not permit unlawful actions – in this case collective punishment – by the other.
The IDF’s artillery fire in these circumstances is not a defensive action taken to combat opposing fire and Qassam rockets at the time they occur. Rather, it is aimed at what the IDF refers to as “Qassam launching areas,” broad spaces of land from which the IDF believes Qassam rockets had previously been fired. The firing is carried out at Israel’s initiative, as punishment or deterrence, and not in self-defense.
The claims made in reports taking this approach allege that Israel’s exercise of self-defense is merely a pretext for its supposed true motive of punishing the Palestinians. However, these reports provide no evidentiary basis for impugning the motives of Israel, and no legal basis for claiming that Israel’s motives are relevant.
There is no legal doctrine that establishes that an otherwise legal military action in self-defense becomes illegal simply because one of its alleged motives is to “punish” the aggressor. The organizations claiming that there is such a doctrine cannot point to any case or legal source supporting such a doctrine.
This is because the measures taken by Israel (i.e., economic blockades and sanctions, clearing land to eliminate hidden launch sites) are perfectly legal under international law and are reasonable actions to combat the incessant targeting of Israeli civilians. NGO Monitor will examine the legality of these measures in future installments of the International Law, Human Rights, & NGOs series.
Significantly, these reports make no realistic suggestions of what would be considered lawful and effective measures. One is left to conclude that the organizations simply accuse all Israeli defensive measures as illegal collective punishment, effectively nullifying Israel’s rights of self-defense.
Approach 3: Pay lip service to Israel’s right to defend itself.
Joint Statement by Amnesty International UK, Christian Aid, Diakonia, Trocaire, Mercy Corps, Oxfam, and others (December 22, 2009)
We condemn all indiscriminate rocket attacks on Israel from Gaza. Israel has the right and obligation to protect its citizens. The policy of blockade, punishing the entire civilian population of Gaza for the acts of a few, is a collective punishment, which is unacceptable and violates international law.
EuroMediterranean Human Rights Network (EMHRN) (October 2005)
Israel has under its right to self-defence claimed its right to take both preventive and reactive actions, including the use of force, in respect of threats coming from the Gaza Strip. . . . Israel must immediately end its military attacks on occupied Palestinian territories, which includes the Gaza Strip, the West Bank and East Jerusalem.
Oxfam (May 2004)
‘Israel has the right to act and defend itself and its citizens’ . . . Oxfam, like others, believes that the interpretation of the [Government of Israel] is frequently carried too far.
International Federation of Human Rights (France)/International Commission of Jurists (n.d.)
Israel has the right and the duty to protect the security of its citizens and to defend its territory. However, any security measures must be in strict conformity with Israel’s obligations under international law . . . the construction of such a wall [Israel’s security barrier] seriously hinders the enjoyment of the most fundamental human rights by the Palestinian population and is in violation of international law.
NGO reports adopting this approach artificially provide “balance” to their delegitimization of Israeli defensive measures by giving a passing mention to Israel’s right to self-defense. The bulk of these reports’ contents, however, condemn every action taken by Israel as a “violation of international law.” No viable or realistic alternatives to end attacks on Israeli civilians are suggested. Once again, the only conclusion that can be drawn is that these organizations consider all Israeli defensive measures illegal, nullifying Israel’s rights of self-defense.
This practice, as described by Kenneth Anderson, is known as “functional pacifism” or “the setting of standards” by “the human rights monitoring community . . . that in principle allow the United States [or Israel in this case] to engage in war, but in the important actual situations, the use of force always turns out to be wrongfully performed.”
Approach 4: Palestinian terrorists are “resistance” fighters who have the right to launch attacks on Israeli civilians as part of a right to self-defense.
From PCHR’s 2008 Annual Report (p. 32):
On 19 June 2008, a 6-month Egyptian-brokeredTahdey’a (lull) was declared between Palestinians and IOF [Israel “Occupation” Forces], . . . While Palestinian resistance activities were stopped, including firing home-made rockets into Israeli towns, IOF implemented the first part of the deal by stopping killings of Palestinian resistance activists, but did not commit to the other part of the deal . . . In their turn, Palestinian resistance groups were generally committed to theTahdey’a, excluding little homemade rocket firing.
However, the Tahdey’a started to stagger in the last two months of 2008, which witnessed an Israeli military escalation, reflected in incursion into Palestinian area followed by extra-judicial execution of Palestinian activists . . . On the other side, Palestinian resistance groups fired a number of home-made rockets into Israeli towns. Following the declaration of an end for theTahdey’a on 19 December 2008, IOF launched a wide scale military offensive on the Gaza Strip…(emphasis added)
Hamas launched hundreds of rocket attacks targeting civilians
PCHR’s statement – in addition to being factually incorrect – is a complete perversion of international law and the concept of self-defense. The description of a “general commitment” by “resistance activists” and a “little homemade rocket firing” is a gross misrepresentation by PCHR of hundreds of rocket attacks on Israeli population centers (more than 15% of the Israeli population was under threat of attack at this time). These operations not only terrorized, injured, or killed tens of thousands of Israelis, they also killed four Palestinian children and wounded several others when the rockets fell short of their intended Israeli targets.
So too, the description of the Israel Defense Forces as having launched a wide-scale military offensive in the wake of the end of the “tahdey’a” on December 19, 2008 is false. In fact, Hamas and other Palestinian terrorist groups launched a “military” operation entitled “Operation Oil Stain” on December 19 entailing wide-scale rocket attacks on Israeli civilians. Only after Israel’s repeated requests for a new cease-fire were rejected did Israel initiate a large-scale defensive response.
Claims of self determination rights does not provide carte blanche for aggression
PCHR’s approach seems to endorse what Professor Michla Pomerance describes as a concept of “cost free aggression” rooted in “self determination.” In other words, PCHR appears to be claiming that Palestinians have the right to engage in “resistance” attacks on Israel in order to achieve Palestinian territorial claims backed by rights of self-determination. The “right to self determination,” however, cannot trump the self determination rights of other peoples nor does it grant a right to engage in illegal aggression or erase the unequivocal rights of states to protect themselves from attack against their territory or their citizens.
Rights of self-determination do not give Palestinian actors carte blanche to engage in any use of force they deem appropriate, nor to violate the norms of international peace and security. International law is quite clear in stating that even if Palestinian actors had a perfectly sound legal claim to the territory, and Israel were wrongly occupying territory, the Palestinians would have no right to initiate attacks on Israel in “defense” of their territorial rights. As the Eritrea-Ethiopia Claims Commission ruled, a claim of “self-defense cannot be invoked to settle territorial disputes” in the name of liberating occupied territory.
Attacks on Israeli civilians are war crimes, not “resistance”
Even more troubling, PCHR seems to be claiming that Palestinians have the right to engage in “resistance” attacks on civilians. Contrary to PCHR’s euphemistic apologetics and supposed justifications of “resistance,” the direct targeting of civilians by Palestinians is a violation of the rule of distinction and is a war crime. The broad consensus is that non-state actors are bound to obey the laws of war and in fact, in 1989, the Palestinian National Council decided, on behalf of “Palestine,” to adhere to the Geneva Conventions and Additional Protocols I & II.
It is strange that a so-called “human rights” organization receiving hundreds of thousands of dollars from European governments (EU, Denmark, Norway, Ireland, Netherlands) would make such claims.
 In addition to the enormous numbers of casualties, hundreds of thousands of Israelis suffer from post-traumatic stress disorder (PTSD) and other psychological effects from these continual assaults. Since Israel’s disengagement from Gaza in August 2005, terrorist organizations in Gaza have bombarded Israel with more than 8,000 missiles. Attacks and attempted attacks occur on an almost daily basis including the 26 November 2009 stabbing of two Israeli women near Hebron and, on the same day, the capture on the Egyptian border of a 15-kilo bomb destined for the Israeli resort city of Eilat. Meanwhile, Iran and Syria continue to smuggle long-range weapons and ammunition to Hamas and Hezbollah. On 4 November 2009, the Israeli Navy intercepted a ship loaded with hundreds of tons of Iranian missiles, ammunition, grenades, RPGs, and other materiel intended for Hezbollah. Hamas officials regularly boast of their ability to attack Tel Aviv with their smuggled missiles.
 Gregory E. Maggs, “The Campaign To Restrict The Right To Respond To Terrorist Attacks In Self-Defense Under Article 51 Of The U.N. Charter And What The United States Can Do About It,” 4 Regent J. Int’l Law 149 (2006), available athttp://docs.law.gwu.edu/facweb/gmaggs/pubs/regent.htm.
 See also Mark W. Janis, “An Introduction to International Law,” (2d ed. 1993) at 179 (citing Ian Brownlie, Principles of Public International Law 432 (3d ed. 1979) at 433, “A sovereign state is entitled to defend itself, that is to protect its territorial integrity.” “Wheaton saw the ‘right to self-preservation’ as an absolute right, lying at the foundation of all the other rights of states.”).
 Several of these arguments originate in a line of nonbinding and widely criticized opinions issued by the International Court of Justice, including its Advisory Opinion on Israel’s Security Barrier.
 These NGOs also appear to be confusing the concepts of jus ad bellum (laws governing use of force) and jus in bello (laws that apply once fighting has begun, e.g., international humanitarian law (IHL)). The legality of Israel’s decision to utilize military force or implement military measures is irrelevant to Israel’s obligation to comply with IHL. Israel is obligated to observe IHL (and does) in the conduct of its military operations and acknowledges this fact. For more on this topic, see Laurie Blank & Gregory Gordon, Goldstone, Gaza and (Dis)Proportionality: Three Strikes, Jurist, November 4, 2009, available athttp://jurist.law.pitt.edu/forumy/2009/11/goldstone-gaza-and-disproportionality.php
 See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. 1986 ICJ 14, 94-6, available athttp://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=nus&case=70&k=66
 Eritrea Ethiopia Claims Commission, Partial Award,Jus Ad Bellum, Ethiopia’s Claims 1–8, 19 December 2005, at ¶ 10, available at http://www.pca-cpa.org/upload/files/FINAL%20ET%20JAB.pdf.