ICJ Advisory Opinion of 2004 haunts Israel – no right of self-defence in Gaza

Israel responded quickly to Hamas‘ violent attacks on Israeli territory of October 7, 2023 which caused 1.139 deaths on the Israeli side and about 240 people taken hostage into Gaza, by using overwhelming military force and putting Gaza under a complete blockade.

However, Israel’s relentless, indiscriminate bombardment and ground offensive within the tiny coastal strip (of only 40 km length and 6-14 km width) and the deliberate denial of water, food, fuel, electricity, medicine and medical supplies for the ca. 2,3 million inhabitants  have so far killed more than 23.000 people, most of them women and children, injured and maimed almost 60.000 and thousands of people are still lying under the rubble. More than 85 per cent of the population of Gaza is displaced and the vast majority of the residential homes and civilian infrastructure, including hospitals, schools and agricultural land, has been destroyed or severely damaged.

Israel, the United States and some of its allies still maintain that Israel is acting in „self-defence“ in order „destroy Hamas“ (whatever that means).

One can ask whether this justification is still – morally and legally – valid today, in the light of the growing civilian casualties and an intensifying humanitarian catastrophe, including the immediate danger of irreversible damage to children’s health due to exposure, malnutrition and lack of access to clean water as well as the lack of hygiene and healthcare for pregnant women and newborns.

But another question is whether Israel has ever acted in „self-defence“ at all under the rules of international law. The Conclusions of the International Court of Justice (ICJ) of 2004 in its  Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, considering in great detail the complex history of Palestine, suggest that this is not the case.

Israel’s construction of the „Security Fence“

Palestine, originally part of the Ottoman Empire, was entrusted to Great Britain under a mandate of the League of Nations at the end of the First World War. However, in 1948, the Jewish population, grown from 56.000 tenfold to 650.000 through migration, unilaterally proclaimed its independence from Britain as „State of Israel“. It deported around 700.000 Palestinian Arabs (Palestinians) from that part of Palestine Israel considered its own (called „Nakba“ or „Catastrophe“ by the Palestinians).

Original plans to draw exact lines of partition between one Palestinian-Arab and one Jewish state were never implemented. Rather, during the armed conflict between Israel and its Arab neighbour states in June 1967 (Six Day War), Israel occupied all of the „non-Israeli“ territories which had constituted Palestine under the British mandate by military force.

The Security Council of the United Nations unanimously adopted Resolution 242, declaring the inadmissibility of the acquisition of territory by war and calling for the withdrawal of Israel’s armed forces from the occupied territories (West Bank, East Jerusalem and Gaza). However, despite transferring some administrative powers and responsibilities to Palestinian authorities later, Israel never lifted the occupation.

In 2002, the government of Israel began to build a „security fence“ to prevent an „infiltration into Israel“, consisting of a fence with electronic sensors, a ditch of up to four meters deep, a two-lane asphalt patrol road, a strip of sand smoothed to detect footprints and a stack of six coils of barbed wire, all in all being 50 to 70 meters wide. About 85 percent of this structure should meander through the occupied territory itself (in particular the West Bank bordering to Jordan (https://www.btselem.org/separation_barrier) and so encircle hundreds of thousands of Palestinians into many little „enclaves“, surrounded by more than 300.000 (meanwhile much more) Israelis having illegally settled in the occupied territory.

ICJ: Separation Wall contrary to international law

In October 2003, the United States vetoed a resolution of the Security Council which would have condemned the „fence“ or „wall“ as illegal and would have demanded its demolition. Consequently, the UN General Assembly, whose resolutions cannot be vetoed but are not legally binding, asked the ICJ to clarify the „legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory, including in and around East Jerusalem“.

In its Advisory Opinion of July 9, 2004, the Court concluded that the construction of the wall and its associated regime were contrary to international law. Under customary international law, all the Palestinian territories occupied by Israel in 1967 „including East Jerusalem“ had still to be considered occupied and Israel  still had the status of an occupying power. It further stated that the Israeli settlements in the Occupied Palestinian Territory „including East Jerusalem“ had been „established in breach of international law“. Most important, the Court stated that Israel could not justify the building of the wall with its right of self-defence under Article 51 of the UN Charter: The threat of „infiltrations“ claimed by Israel did not only not stem from a state, but originated from within the occupied territory in which Israel exercised control as the occupying power. Furthermore, so the Court, the wide ranging rights of individuals under the international human rights conventions Israel had signed up to – to be distinguished from the minimum requirements of the humanitarian law applicable in all wars – would be binding for Israel in the Occupied Palestinian Territories as if it were to exercise jurisdiction in „Israel proper“.

Respect for human rights and equal valuation of all human life are moral and legal imperatives

The reasoning of the Court is, based on the constant practice of the Human Rights Committee, that it would be unconscionable to permit a state to escape its human rights obligations just because it exercises its jurisdiction on foreign soil, even in cases of armed conflict. These responsibilities include the obligation to value all human lives equally in cases of emergency.

It would indeed be very arbitrary to determine the scope and extent of the rights of the Palestinians living in East Jerusalem merely on the question whether the territory has been formally annexed by Israel or not.

Israel still occupies Gaza

Under customary international law, the test for determining whether an occupation exists is the effective control by the hostile army, not the positioning of its troops. Therefore, the status as an occupying power remains unchanged when the belligerent occupant evacuates parts of the territory, as long as it is able at any time to reassume control over those parts (Trial of Wilhelm List and Others, United States Military Tribunal, Nuremberg 1949 p. 56).

In 2005, Israel removed all troops and Jewish settlements from within the Gaza Strip, but kept its military deployed around the Strip’s periphery and retained its control over Gaza’s borders, coastline and airspace and even maintained a „no-go buffer zone“ within the territory. Israel has further retained control over Gaza’s communications, water, electricity and sewage networks, as well as the flow of people, goods and money into and out of the territory. Furthermore, according to Israel’s Government Website, Israel’s Population Registry Office is still responsible, „in coordination with the Palestinian Authority“, for updating and archiving the Palestinian population registry, including that of Gaza. Since Israel controls practically every aspect of life in Gaza, and, as far as not, can reassume this control at any time, it has still the responsibilities of an occupying power today.

UN General Assembly: „Israel, the occupying power“

This is also confirmed by various statements made by individual states as well as the United Nations.

In the resolution of the UN General Assembly of December 30, 2022 (A/RES/77/247), a majority of 87 states (87 to 26, with 53 abstentions) requested from the International Court of Justice another advisory opinion with respect to the ongoing violation by Israel of the rights of the Palestinian People and the legal status of the occupation. The resolution explicitly calls upon „Israel, the occupying power, to cease its imposition of prolonged closures and economic and movement restrictions, including those amounting to a blockade on the Gaza Strip“.

Also, the website of the German Foreign Office, in an article dated as recent as October 17, 2023, states that „the Palestinian territories (East-Jerusalem, Westbank and Gaza) and the Golan are occupied by Israel since 1967“.

No „self-defence“ for Israel in Gaza

Since Israel still occupies Gaza today by controlling practically every aspect of life, it cannot, according to the Opinion of 2004, justify its actions in Gaza by claiming self-defence under Article 51 of the UN Charter. As an occupying power, Israel has to respect human rights including the equal value of all human life as if the territory were „Israel proper“.

Israel’s remaining defences

Israel’s defence of „necessity“, which the ICJ applied in favour of Israel (but ultimately denied) in 2004, is still applicable in the Occupied Palestinian Territories including Gaza. It requires, in contrast to that of „self-defence“ under Art. 51, that the „defended“ interests of the „defending“ state have more weight than those of the entity against which the „defence“ is directed. If this is not the case, Israel has to abstain from the specific measure.

Limitations by international human rights law

Furthermore, the defence of Israel’s own interests in the Palestinian Territories is limited by the universally applicable human rights conventions Israel has signed up to in 1991 – in full awareness of the „terrorist threats“  coming from there – and which go far beyond the general rules of war – such as the Hague Convention of 1907 or the Geneva Conventions.

Being the occupying power, Israel must not only refrain from damaging the welfare of the civilian population over which it exercises jurisdiction, but has to actively enhance it. For example, according to the Covenant on Economic, Social and Cultural Rights, Israel must promote the „highest attainable standard of physical and mental health, including reduction of infant mortality and healthy development of the child“. Under the Covenant on Civil and Political Rights, Israel must grant its rights „without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.“

Israel would regain its right of self-defence under Article 51 of the UN Charter with respect to the Palestinian Territories only if it abided by Resolution 242 of the Security Council and lifted the occupation.