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As an Occupier, Israel Has No Right to “Self-Defense”

By invoking self-defense, Israel changes the conversation from its colonial crimes against the Palestinians to the injuries it has itself incurred as a result.

A ball of fire erupts from a building in Gaza City's Rimal residential district on May 16, 2021, during massive Israeli bombardment of the area. (BASHAR TALEB/AFP via Getty Images)

“Israel has a right of self-defense.” This commonsense statement is repeated everywhere — by state officials and media outlets, by commentators and anchors. It seems so basic and self-evident that it is hard to argue with.

But today Israel uses self-defense as its key rhetorical tool for war. By invoking self-defense, Israel changes the conversation from its colonial crimes against the Palestinians to the injuries it has itself incurred as a result. Yet it is precisely because Israel is denying Palestinians their human rights, including the right of self-determination, that it cannot claim self-defense as a legal justification for the use of force. In fact, Israel’s conduct is clearly part of a state-driven occupation project for which it is criminally liable.

There are two main reasons why Israel’s self-defense premise is flawed. First, self-defense does not apply to an occupying state’s wars against those it occupies — it is not relevant for Israel in relation to the Palestinians. Second, what Israel does in Gaza violates all known conditions for self-defense, especially the necessity of war when peace is easily available, discrimination between soldiers and civilians, and the proportionality of harm inflicted in achieving military aims.

As a justification for war, self-defense is based on article 51 of the UN Charter, which specifies: “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.” Barring Security Council authorization, this is the only legal justification for the use of force by states against other states. No mention is made of nonstate actors here. Nor is the analogy between individual and state rights that informs it conceptually unproblematic: states do not have the rights of individuals.

Because of this intrinsic “lack of clarity about the legal parameters of article 51,” many legal scholars do not see it as fit for purpose. Aggressive states have turned article 51 into a mechanism for justifying violence rather than prohibiting the use of force. Every war is now a war of self-defense conducted in the name of securing the state against threats: from the US invasions of Afghanistan and Iraq to the Russian invasions of Chechnya and Ukraine. As Noam Chomsky once put it: “If we had records, we would probably discover that Attila the Hun was acting in self-defense. Since state actions are always justified in terms of defense, we learn nothing when we hear that certain specific actions are so justified except that we are listening to the spokesperson for some state; but that we already knew.”

The Palestinian human rights organization Al-Haq has already criticized Israel’s abrasive and abusive “lawfare” methods in international law. Over the invasion of Gaza in 2008–9, it argued that Israel could not invoke self-defense as a justification for war because it contravenes both Israel’s obligations as occupier (in “effective control”) of Gaza and the legal principle of military necessity “as the exclusive legal justification for any operation.” Indeed, “despite the widespread acceptance of Israel’s pretext, the legal status of the OPT [Occupied Palestinian Territories] excludes the application of Article 51 of the UN Charter as a result of the prolonged occupation.”

This is supported by scholarly analysis of international law in reference to Israel’s numerous invasions of Gaza. Norman Finkelstein argues that “Israel . . . has no legal mandate to use force against the Palestinian self-determination struggle.” Why? Because “Israel cannot pretend to a right of self-defense if the exercise of this right traces back to the wrong of an illegal occupation/denial of self-determination (ex injuria non oritur jus [No legal benefit or right can be derived from an illegal act]).” National Palestinian rights are paramount, and protected by law.

Israel has, therefore, no lawful basis to go to war against occupied Palestinians. The opposite is true. It has obligations toward them, and has to end its own violations of Palestinian rights — not add to them. This is precisely how it can rightfully protect its own citizens and secure them from indiscriminate Hamas rockets: by solving the conflict politically and achieving peace without occupation. Ending the siege of Gaza and allowing Palestinians a modicum of human dignity would be a good beginning.

Legal justification aside, what about how Israel actually conducts its so-called self-defense campaigns? This is increasingly better understood in public discourse, and widely reported on by many human rights organizations. Since the Second Intifada at least, Israel has used disproportionate, indiscriminate, and unnecessary military force in violation of international law. It targets civilian structures, kills hundreds of children, wipes out whole families, and inflicts widespread destruction and collective punishment on a whole besieged population. The record also shows that human shields are exclusively Israel’s tactic.

Israel’s invocation of self-defense has a clear function. It facilitates Israel’s occupation and boosts its settler-colonial project. The new nation-state law makes it illegal for Israel to allow Palestinian self-determination in Israel-Palestine. Only Jewish Israelis can exercise this right. Apartheid is now on everyone’s lips, and Jewish supremacy in Israel can no longer be hidden or ignored. Witness the lynch mobs against Palestinian citizens of Israel as its most recent incarnation.

Israel also uses force for what it calls military deterrence. How does this work? Hit Palestinians hard enough to reduce their political aspirations. Prolong the wars to bomb and destroy more. And terrorize Palestinians to a resigned acceptance of their degraded life. If this tried-and-tested Zionist formula works as planned, it brings expulsion nearer.

For Palestinians and Israelis to live in peace, Israel should no longer be given a free pass to package wars of aggression as self-defense. If the Israeli-Palestinian conflict is allowed to rage on for another hundred years, no one in the region will be safe.