Akhila Basalalli, Ashna Singh

Self-Defence under International Law: Lessons from the Israel-Gaza Conflict

As we begin to teach Public International Law and Human Rights Law at the National Law School of India University, we encounter a recurring sentiment of scepticism among students towards both subjects. In light of the ongoing conflicts in Russia-Ukraine and Israel-Palestine, their questions are understandable. What is the relevance of the international legal regime—today or in the times to come? Is ‘International Law’ law at all?

Our students are not alone in questioning the efficacy of international law—these sentiments are shared by many across the world. We therefore felt compelled to engage with the fundamental principles of international law, particularly in light of Israel’s misinterpretation of international law to legitimise its disproportionate attack on Gaza, and the responses of other states to these attempts.

This article highlights how the relevance of international law primarily rests on how countries invoke it, either to justify their own actions or to denounce another’s actions. This question is distinct from the enforcement of international law and one that must be addressed, especially with respect to the positivist notion of law as being meaningful only when it is enforceable.

The Israel-Gaza conflict has called attention to several areas of international law, such as international humanitarian law and human rights law, as well as articles under the UN Charter concerning the use of force. The convergence of human rights and humanitarian laws makes these regimes relevant for individuals as much as for interstate relations, requiring new interpretations of these rules. The UN Charter in Article 1(3) includes, among other stated purposes, ‘international cooperation in solving international problems’ and ‘promoting and encouraging respect for human rights and fundamental freedoms for all’. The presence of Article 2(7) of the Charter, which forbids the organisation from intervening in the domestic affairs of states, is not of much relevance as the UN Charter is conceived as a living instrument and thereby, this article must be interpreted in accordance with the purposes, objectives and broad mandate of the UN. Hence, the notion of domestic non-interference in keeping with state sovereignty stands irrelevant today, particularly in the context of human rights violations. What this means is that states can no longer use the shield of sovereignty and domestic non-interference for their actions/inactions that cause human rights violations. Even in cases where enforcement agencies are reluctant to take action, individual states or the international community may issue verbal/written endorsements or condemnations. This article argues that such articulations hold a good amount of significance.

Irrespective of the changing notions of subjects under international law, the primary actors in the international legal order are states. The creation of international norms (regardless of their nature) predominantly takes place through state consent, resulting in either treaties or customs—the two main sources of international rules. These include principles regulating conflict situations and require a great amount of clarity and predictability. However, both these sources are not without contestation for two reasons:

(a) Custom as a method of law creation is difficult to digest because states consider certain tenets to be the law before they become the law, and,

(b) Treaties are the primary source of international law even in the absence of a central, supranational legislative authority and inadequate enforcement mechanisms.

The United Nations Security Council (UNSC) is concerned with a centralised system of law enforcement, which is different from the decentralised development of international law. The UNSC has been accused of failing at its task more often than not. The lack of effective enforcement mechanisms may lead to the impression that international law is merely a set of rules that can be violated with impunity.

Israel, by being a signatory to the UN Charter has consented to bind itself to Article 51, which provides states with the right of self-defense against armed attacks. However, this right can be exercised only until the UNSC takes steps to maintain peace and security. Further, the right contained in Article 51 is not an unlimited one. A state’s inherent right of self-defence is limited by various other principles in international law, such as proportionality and necessity, which are largely regulated by the Geneva Conventions of 1949 and their Protocols. Therefore, when a state binds itself to the UN Charter, it is also obligated to adhere to the limits implied in Article 51. The enforcement of the above norms appears to be at stake, given the paralysis in the UNSC caused by the growing use of veto powers.

However, the existence of international law is not preconditioned by its enforcement. It has operated even without modern enforcement mechanisms and this is worth remembering. Ideally, countries should adhere to international law not out of the fear of enforcement but because of their commitment to the law in good faith (known as pacta sunt servanda in international law) and the rights or obligations owed towards all (erga omnes). Hence, violations of international law must be treated as such regardless of the state of enforcement.

In other words, the condemnation of a violation by the international community—even when the UNSC takes no action—is enough to characterise a violation as such. This was recognised by the International Court of Justice (ICJ) in the case of Nicaragua vs. USA (1986). The applicability of this principle will be demonstrated in the following paragraphs.

One of the mandates of the UN is to maintain international peace and security. Towards this end, the UN Charter imposes qualifications on the use of force through Article 51. Israel, by virtue of being a member of the UN, is entitled to use force for self-defence. However, this right can be exercised only until the UNSC takes steps to maintain peace and security. Logically, one can ask: is the use of force—albeit with the stated purpose of self-defence—when not supported by necessity and proportionality, tainted with illegality? Further, with Israeli Minister of Foreign Affairs Eli Cohen’s statement that ‘Israel intends to eliminate Hamas just as the world dealt with the Nazis and ISIS’, several scholars as well as the international community—South Africa’s case against Israel at the International Court of Justice being a notable example—have argued that Israel’s systematic attacks on Gaza are nothing short of genocide. This has raised concerns that Israel has violated a jus cogens norm, i.e., a norm from which no derogation is possible in international law.

The response of the international community is essential to discern the violation of international law in this situation. For instance, the G7, while emphasising Israel’s right of self-defence, has also called for ‘humanitarian pauses’, underscoring the importance of protecting civilians in compliance with international law, in particular International Humanitarian Law. Though the G7 has been reluctant to explicitly acknowledge Israel’s actions as violating international humanitarian law, it acknowledges the need for all parties to comply with the conditions attached to the ‘use of force’. Similarly, the joint statement on Israel made by the USA, France, UK, Germany, and Italy on October 9, 2023, just two days after the Hamas attack, condemned it as unlawful and supported Israel’s right of self-defence.

Israel’s prolonged and indiscriminate attack on Palestinian people over the last three months—avowedly an exercise of its right to self-defence—must be subjected to the principles of necessity and proportionality. Its attacks on non-military targets such as hospitals, as well as dual-purposed objects (objects/infrastructures used by both military and civilians) and essential facilities are expressly prohibited by international humanitarian law.

Another joint statement made by the same states on October 22, 2023 reiterated their support for Israel’s right of self-defence but again called for adherence to international humanitarian laws, such as the protection of civilians. This implies that these countries recognise the limitation on the right of self-defence by international laws. Thus, one can infer that even in the absence of explicit condemnation of Israel’s attack, there is some implied consensus regarding its indiscriminate and imprudent use of the right to self-defence.

The United Nations General Assembly’ (UNGA) resolutions are still better indicators of the response of the international community. On October 26, 2023, the UNGA passed a resolution on the ‘Protection of civilians and upholding legal and humanitarian obligations’, expressing grave concern over the escalation of violence in Gaza after the attack on October 7, 2023. The resolution does not name Hamas in the text. It recalls the critical need to uphold principles of distinction, necessity, proportionality, and precaution in the conduct of hostilities. It explicitly demands that all parties immediately and fully comply with their obligations under international law, including international humanitarian and human rights law. After the adoption of the resolution, Riyad Mansour, the Permanent Observer for the State of Palestine, issued the following statement: ‘This is the [resolution] that was sent today by the General Assembly to him [the Israeli representative at the United Nations] and anyone else who is attempting to rewrite International Law.’

Mansour’s statement showcases Palestine’s continuing expectations of support from the international community regardless of being turned down on multiple instances. The US however reiterated that Israel was exercising its right and responsibility to defend its people from Hamas, but that ‘it must do so in line with ‘rules of war’. The US voted against the resolution and the UK abstained from voting. A similar pattern was followed while adopting the UNSC resolution 2712 on November 15, 2023, when the US, UK and Russia abstained from voting on a resolution on the Israel-Palestine issue. Hence, the enforcement of international law at the hands of the UNSC remains questionable.

Surely, none of this means that resolutions or statements are enough in themselves to stop violations of the law but all of this does mean something. Despite the absence of unanimous condemnation of Israel’s attacks on Palestine by the UNSC, the majority of UN members—including the five  permanent members—have accepted and displayed their opinio juris regarding the limitation on the right of self-defense. In this situation, condemnations of Israel’s actions help us locate the tenets of international law and mark its violations.

The questions raised by our students regarding the nature of international law are not entirely misplaced. However, this scepticism must be tempered with the recognition that the enforcement of international law is not a precondition for the existence of international norms.

About the Authors

Dr. Akhila Basalalli is Assistant Professor of Law at NLSIU.

Dr. Ashna Singh is Assistant Professor of Law at NLSIU.