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The 2014 Israel-Gaza Conflict. Self-Defence or Atrocities in Gaza?

Essay 2014 52 Pages

Politics - International Politics - Region: Near East, Near Orient

Excerpt

Index

Table of Acronyms and Abbreviations

Table of Figures

I Introduction

II The Concept of Self-Defence
A Origin of the Prohibition on the Use of Force
B Principles Governing the Use of Self-Defence
1 Procedural requirements
2 Substantive requirements

III Self-Defence against Non-State Actors
A The Possibility of Self-Defence against Non-state Actors
1 Opinion of the International Court of Justice
2 State practice
B Particular Issues of Self-Defence against Non-state Actors
1 Scale of the initial armed attack
2 Anticipatory self-defence
3 Necessity and proportionality

IV Legality of Self-Defence in the 2014 Israel-Gaza Conflict
A The Gaza Strip
B Historical Background of the Conflict
C Operation Protective Edge: lawful self-defence or atrocities in Gaza?
1 Timeline of the 2014 Israel-Gaza Conflict
2 Legality of Operation Protective Edge

V Conclusion

Bibliography

ANNEX 1: Timeline of the 2014 Israel-Gaza Conflict

"The maintenance of world peace and security depends importantly on there being a common global understanding, and acceptance, of when the application of force is both legal and legitimate.”1

Table of Acronyms and Abbreviations

illustration not visible in this excerpt

Table of Figures

Figure 1. The Palestinian Territories

Figure 2. Palestine Plan of Partition

Figure 3. Israeli Territory before the 1967 War

Figure 4. Israeli Territory after the 1967 War

I Introduction

International law historically originates from the need to stabilise relations between people and states. To this day, one of its most classic functions remains ensuring the peaceful coexistence between states. Global history is featured by conflicts between states, and even today there is no shortage of disputes. Besides principles of demarcation of territories and jurisdictions between states, the international law developed a wide range of techniques to resolve conflicts. Two of the major sub-branches of international law in this context are the ius ad bellum and the ius in bello. The former is concerned with the law that governs the use of force, whereas the latter deals with the conduct of the armed conflict itself2.3

The legal abolishment of war was introduced by the United Nations (hereafter “UN”), which was established in the aftermath of the Second World War.4 Nonetheless, according to the Charter of the United Nations of 24 October 1945 (hereafter “UN Charter”), self-defence can serve as a justification for the use of force when certain conditions are met (article 51). The primary purpose of the right of self-defence is to provide states with a self-help mechanism that allows them to halt and repel the attack. The assumption of article 51 is that when the international community - i.e. the UN Security Council – does not (timely) respond to an armed attack against a state, the victim state cannot be expected to remain passive while it is waiting for the Security Council to act.5

Since the Second World War, the face of armed conflicts changed: inter-state conflicts have receded significantly in favour of new wars in which non-state actors play the leading role.6 Non-state actors are individuals or organisations that have a significant political influence, but are not allied to any particular state.7 Since the 9/11-attacks, the legality of self-defence against private violence (i.e. violence of non-state actors) has become a major question in the international ius ad bellum debate. While during the Cold War the state-paradigm dominated and states generally held on to a certain form of state involvement in case of a terrorist attack, today it seems that the international community no longer has principle objections to the exercise of self-defence against non-state actors, even if the initial attack cannot be attributed to a state.8

As a response to the proliferation and rise of non-state actors, attempts to stretch the limits of the definition of self-defence to include attacks by non-state actors can be witnessed.9 The Israel-Gaza conflict, one of the most complicated ongoing international conflicts with non-state actors, has – as a part of state practice – also contributed in the evolving standard of the right of self-defence.

Israel and non-state actor Hamas – a Palestinian Islamic organisation that is currently governing the Gaza Strip – are at war in the Gaza Strip. As a result of the ongoing Israeli occupation in Gaza, there have been sporadic rocket and mortar attacks by Hamas at Israel since a long time. In 2012, the violence between Hamas and Israel came to an end with a long-term ceasefire. But in breach of this ceasefire, the former conflict escalated again in the summer of 2014 after three Israeli teenagers were killed. The Israeli government blamed Hamas for those atrocities. In the eyes of Israel, those events were the straw that broke the camel’s back and therefore they launched “Operation Protective Edge” on the 7th of July this year. This operation resulted in air and ground invasions against Hamas and corresponding violence against Israel.

Israel tries to invoke self-defence as a justification for its – rather aggressive – use of force. But within the international community a lot of questions are raised about the legality of Israel’s use of force within Operation Protective Edge. In order to assess the legality of those actions, certain sub-questions need to be answered first. What were Israel’s objectives in Operation Protective Edge? Does Hamas’ ongoing rocket fire pose a real security threat to Israel? Has Israel’s response in Operation Protective Edge been proportional? And if Hamas’ rocket attacks are so serious, why is the number of civilian casualties in Israel so low compared to Gaza?

The essay commences by explaining the origin of the prohibition of force in Chapter II, with a particular reference to the spirit of the age in which the abolishment of war was born. In the same chapter, self-defence as an exception on the use of force and its leading principles are being discussed. The current international law requires two procedural and three substantive conditions in order for self-defence to be legitimate. Subsequently, Chapter III includes an analysis of the legality of the exercise of self-defence against non-state actors. Both the opinion of the International Court of Justice (hereafter “ICJ”) and the state practice on this topic will be evaluated. This evaluation will show that law is reactive and responsive to the factual context in which it operates. Within this chapter, the particular considerations that need to be taken into account when investigating the legality of self-defence against non-state actors will be emphasised. A clear link between the ius ad bellum and the ius in bello in the context of legality of self-defence will be demonstrated. In Chapter IV, the lawfulness of Israel’s self-defence actions in the 2014 Israel-Gaza conflict will be critically analysed. Before going in to the actual legal analysis, this chapter will give a short fact-list about the Gaza strip and will summarise the historical background of the overarching Israel-Palestine conflict, in order to get an understanding of the day-to-day conflict and the bigger picture of the recent escalations. Then, the legality of Operation Protective Edge will be scrutinised. Part V contains the final conclusion. This chapter will try to conclude about the legality of Israel’s Operation Protective Edge, while remaining impartial. Finally, a short reference will be made at whether the current ‘peaceful’ status quo of the Israel-Gaza conflict is definite, and if not, which long-term realistic and effective solutions can be pursued.

II The Concept of Self-Defence

A Origin of the Prohibition on the Use of Force

A prohibition of force was introduced only in the beginning of the twentieth century. Until then, the use of force was seen as an aspect of state sovereignty and could be used as both a legitimate means of territorial acquisition as well as a means for a state to redress a grievance. However, the twentieth century was featured by the concept of worldwide war and the atrocities that this uncontrolled use of force could entail. This caused a global shift among nations towards an era in which the use of force should be limited.10

After World War One, the League of Nations was established in 1919 and in 1928 the Kellogg-Briand Pact11 was enacted. While both initiatives pursued to encourage the state parties to resolve their disputes exclusively by peaceful means, they were also featured by certain inherent shortcomings that made it impossible to completely ban the use of force as a legal means of statecraft. Eventually the limits of both the League of Nations and the Kellogg-Briand Pact became dramatically evident with the outbreak of the Second World War.12

These events resulted in a global realisation that the only way to restrain the use of force in international relations in an effective way was by the creation of a new organisation which main objective was to maintain international peace of security. In this line of thinking the United Nations was established in 1945. As the constitution of the UN, the UN Charter introduced the prohibition on the use of force by states in article 2(4): “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.”13 This article is considered as the cornerstone of the UN Charter.

The prohibition of force is generally regarded not only as a treaty obligation expressed in the Charter, but it is also recognised as a rule of customary international law14 and it even serves as ius cogens norm15.16 Consequently, the prohibition of force is applicable to all states irrespective of their UN membership.

The UN Charter only provides two exceptions on the use of force, the first being actions authorised by the Security Council under Chapter 7. The Security Council bears the primary responsibility for the maintenance of peace and security and can therefore take appropriate actions by air, sea or land forces to maintain or restore the international peace and security.17 The second exception is provided in article 51 of the Charter and includes the right of self-defence. According to this article, self-defence is allowed if an armed attack occurs against a Member of the UN, until the “Security Council has taken measures necessary to maintain international peace and security”.

B Principles Governing the Use of Self-Defence

The use of force against another state is allowed when one state is exercising its inherent right of individual or collective self-defence recognised by article 51 of the UN Charter. In order to use this right in a legal way, the valid international law in this context needs to be respected. The international law governing the legal right of self-defence is being shaped on the basis of two sources, namely the UN Charter and the customary international law on this topic.

The Nicaragua case was the first case in which the International Court of Justice ruled on the interpretation of the right of self-defence.18 According to the ICJ, the right of self-defence forms part of the customary international law.19 If we read between the lines of the judgement, it seems that there is a clear parallelism between the right of self-defence in article 51 of the UN Charter and the customary international law on this subject.20 The ICJ also claims that article 51 does not include all the aspects of the right of self-defence. For example the requirements of ‘necessity’ and ‘proportionality’ - against which any exercise of the right should be tested - can only be found in the customary international law (infra).21 Taking into account the text of article 51 of the UN Charter and the jurisprudence of the ICJ, one can say that the exercise of the right of self-defence is subject to two procedural and three substantive conditions.22

1 Procedural requirements

The first procedural requirement, which is mentioned in article 51 of the UN Charter, provides that states that take self-defence measures shall immediately report those to the Security Council. According to the ICJ, this requirement is not part of the customary international law and is therefore the first and only difference between the customary and treaty concept of self-defence.23 When a state abstains to notify the Security Council, it weakens its arguments in favour of its legal exercise of self-defence. However, in practice it can be noted that, at least since the Nicaragua case, states generally respect this notification requirement.24

The second requirement is connected with the timeframe in which the right of self-defence needs to be exercised. According to article 51 of the UN Charter, states can exercise the right of self-defence “until the Security Council has taken measures necessary to maintain international peace and security”. There is some confusion about the precise nature of the measures taken by the Security Council. For example, debates in the Security Council in the context of a particular conflict do not suffice. On the contrary, when the Council explicitly demands to seize the military actions (for example by enacting a resolution) or commences its own military actions, it is clear that the time limit of article 51 has elapsed.25

2 Substantive requirements

(a) Armed attack

The notion ‘armed attack’ is not defined within the UN Charter and therefore gives rise to a lot of controversies. However, before addressing the controversies, it is essential to point out the conditions for the existence of an armed attack along with some contestable remarks.26

(i) Essential conditions

First of all, the right of self-defence can only be used when the attack on which the state responds consists of the use of force. Mere economic aggression, such as economic coercion, does not entitle the victim state to riposte using force.27

Secondly, the ICJ in the Nicaragua case makes a distinction between the gravest forms and the less grave forms of the use of force. According to the ICJ, only the first category of use of force invokes the right of self-defence. In other words, a certain degree of gravity is necessary to be entitled to the use of force in the context of self-defence.28 On this basis, it can be stated that an armed attack must at least encompass force that causes or may cause serious consequences such as human victims and/or severe property damage.29 Forms of violence that do not reach this threshold of intensity can invoke things like international responsibility of a state, but do not justify the use of self-defence. The level of gravity is subject to circumstantial assessment.30 In this regard, armed attacks should be distinguished from ‘mere frontier incidents’, which constitute sole crimes rather than an attack on a state wherein the victim is located. The theory of ‘mere frontier incidents’ was developed by the ICJ in the Nicaragua case.31

Lastly, there are various forms of armed attacks. The classic example is bombing or invading a state’s territory, or other forms such as an attack against its airspace or territorial sea. But an armed attack can also consist of the use of force of a certain degree of gravity by one state against another, the attack being aimed at emanations of the state (such as embassies abroad) or even the nationals of the target state abroad or civil ships or airlines.32

Alongside with those essential conditions, there are some lively debates about which kind of acts can be considered as an ‘armed attack’. The first very controversial aspect in this regard is the debate on the conditions of the occurrence of an armed attack, is self-defence only allowed as a response to an on-going attack? The second and even more important issue in the context of this research essay is the personal scope of application of the self-defence provision: does it only apply to attacks from other states or is it also applicable in the event of an attack by non-state actors? This latter issue will be analysed more in detail in Chapter III, since self-defence of non-state actors is an essential aspect in the context of the Israel-Gaza conflict.

(ii) Theories of ‘anticipatory self-defence’

A state has the right under article 51 of the UN Charter to use force in self-defence “if an armed attack occurs”. Nonetheless, the temporal aspect of the attack gives rise to a lot of controversy. Does this right only arise in case of an ongoing attack or is the threat of an imminent attack sufficient?33 The opposition between the reactive and anticipatory approach has formed a divisive for decades in the legal doctrine.

Traditionally, the majority of the academics took the view that the right is confined to circumstances in which the armed attack has already commenced. The scholars in support of this approach reject a wide interpretation of article 51 of the UN Charter.34 They invoke arguments such as the literal wording of article 5135, as well as the fact that this article is an exception on the prohibition on the use of force and should therefore be interpreted in a restrictive way. The academics in favour of the theory of ‘anticipatory self-defence’ argue that states have a right to act in self-defence in order to prevent the threat of an imminent attack. This latter theory is widely accepted and invokes arguments such as the existence of inherent right of self-defence prior to the actual attack under the customary international law of the 19th and 20th century, as it appears in inter alia the Caroline case36.37 According to the Caroline formula, self-defence is necessary when the defence is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”.38 This clearly envisages the possibility to act in anticipation of an impending attack.39 Additionally, the proponents of the anticipatory approach state that it would be absurd in this nuclear age for states to require them to await for a first strike. The majority view refutes those arguments by pointing out the risk of escalation and by saying that the then valid customary law did not persist since at date war is no longer a prerogative of nations as it was earlier. Correspondingly, the preparatory works indicate that self-defence prior to the actual attack is excluded.40

The only way to advocate in favour of the anticipatory self-defence theory is by proving an actual change in the customary law since 1945 on the basis of state practice and opinio juris.41 At first sight, the state practice and opinio juris seem both to provide little support for the legality of anticipatory self-defence in era after the creation of the UN. However, this situation has changed dramatically since the 9/11-events. Since then, several states as well as a growing group of academics acknowledged that self-defence against imminent threats of an armed attack – i.e. anticipatory self-defence – is legal.42 Thus, the tide seems to have turned slowly in favour of the recognition of anticipatory self-defence and consequently the majority and minority seemed to have swapped places.43 This shift has already been confirmed several times at the level of the UN.44

The generally accepted doctrine of anticipatory self-defence should be distinguished from the controversial doctrine of ‘pre-emptive self-defence’. The doctrine of pre-emption includes the right to respond to threats which might materialise at some time in the future, but that have not been crystallised yet. This theory has not been accepted in international law. Therefore, it can be concluded that in case of a threatened attack, there must be an actual threat of an attack in order to invoke the right of self-defence.45

This right of anticipatory self-defence raises particular questions in case of self-defence against non-state actors (infra).

(b) Necessity and proportionality

The legality of the use of force by a state depends on the legitimacy of its aim, namely self-defence against an initial armed attack. But what are the legitimate ends of force that can be employed to achieve this aim?46 The answer to this question is determined by the necessity and proportionality requirements of self-defence, which are not explicitly mentioned in article 51 of the Charter, but are part of the customary international law.47 Both criteria emphasise the fact that self-defence should be confided to reducing the armed attack and can therefore not justify punitive or retaliation measures.48

(i) Necessity

Was the use of force necessary to bring an ongoing attack to an end or to avert an imminent attack? Legality of the self-defence measure is dependent on the exclusivity of this ultimate purpose; no other objectives can be detected (such as reprisals).49

For forcible measures to meet the necessity criteria they must be suitable to achieve this sole purpose50 and they should be the sole way to achieve this goal.51 The concept of necessity is therefore determined by reference to the possibility of using a less costly – i.e. peaceful – means of defence.52 But the question in this regard is whether the victim state needs to attempt all peaceful avenues before going into forcible action? The answer depends on which stage in the chain of events we are in. If the attack is still ongoing, no other means need to be attempted. In case the initial attack is over, but is expected to continue, an array of peaceful opportunities need to be attempted before invoking the forcible means. Only when all the peaceful means to end or avert the attack have been exhausted or are unavailable, the use of force can be legally used as a last resort.53 This aspect of ‘leaving no other means’ causes particular problems in the context of non-state actors, since not the same peaceful alternatives are available against non-state actors, for example diplomatic efforts (see Chapter III).

In order for a forcible measure to be necessary, force cannot be disproportionate. Therefore, the proportionality of the force is a prerequisite for necessary self-defence. Both requirements are two sides of the same coin. Nonetheless, force that is necessary is not ipso facto proportionate and consequently proportionality constitutes a separate condition.

(ii) Proportionality

To assess the proportionality of forcible self-defence measures, the harm caused by the necessary measures should be balanced against its alleged legitimate ends. The use of force should be limited to the degree of force necessary to end the attack or to avert the imminent threat. When the consequences of the armed response are excessive in relation to its benefits – i.e. ending the initial attack – the measures are disproportionate. The punitive impact and/or the civilian costs of the use of force in self-defence must be considered prior to the responding attack. It is in this respect that the principle of proportionality intersects with other aspects of international humanitarian law.54 Use of force in a self-defence operation is only legitimate when it is limited to the attainment of military objectives, which are selected in accordance with the rules of humanitarian law - which include inter alia the principle of distinction (i.e. no civilian targets) and prohibition of indiscriminate weapons.55 Therefore, it can be said that the proportionality requirement is closely related to some aspects of the ius in bello.

III Self-Defence against Non-State Actors

A The Possibility of Self-Defence against Non-state Actors

According to article 51 of the UN Charter, self-defence can only be invoked as a response to an armed attack. Therefore, prior to the forcible measures being taken by the victim state, the occurrence of the initial attack needs to be inquired. In this regard, the question is raised whether actions of non-state actors can be considered as an armed attack, which would have the potential to give rise to the subsequent right of self-defence to the victim state.56

According to the ICJ and certain commentators, state involvement is a prerequisite for an armed attack and consequently self-defence action can only serve as a response to attacks by a state or groups acting on behalf of a state.57 Nonetheless, plentiful evidence can be found in support for the contention that non-state actors can be responsible for armed attacks which in turn give rise to self-defence. Evidence of this can be found both in the reading of the text of article 51 and in the state practice in the interpretation of the self-defence rule.58 Furthermore, leading commentators corroborate the applicability of self-defence in case of armed attacks by non-state actors.

1 Opinion of the International Court of Justice

Article 51 of the UN Charter solely imposes conditions on the nature of the entity that has the right of response, namely only Members of the UN can exercise the right of self-defence. Nevertheless, there is no reference to the nature of the entity behind the armed attack. However, the ICJ reads article 51 in the following way: “Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State”.59

The limitation of the right of self-defence to attacks by states can maybe be understood from the decision of the ICJ in the Nicaragua case. The Nicaraguan government supported rebels fighting in El Salvador and the question was raised whether this type of support encompasses an armed attack by Nicaragua and can thus possibly invoke the right of self-defence against Nicaragua.60 In this case, the court was mainly assessing the issue of attribution to a state and its consequences, without analysing whether a stand-alone action of non-state actors (i.e. without state support) can in itself constitute an armed attack.61

In its judgement on Democratic Republic of the Congo v Uganda the ICJ had an occasion to revise its opinion on the issue of self-defence against non-state actors.62 Nonetheless, the ICJ did not rule in favour of legal self-defence against non-state actors. In this case Uganda claimed to have acted in self-defence in response to attacks coming from the Allied Democratic Forces (considered as a terrorist organisation in Congo). The Court ruled, in application of the attribution theory, that there was no satisfactory proof of direct or indirect involvement of the Government of Congo in those attacks and that the attacks were therefore non-attributable to the Democratic Republic of Congo. Consequently, the ICJ ruled that there was no right of self-defence without further enquiring a potential claim of self-defence against non-state actors.63

When dealing with a claim of self-defence, the ICJ seems to focus on whether or not armed attacks can be (directly or indirectly) attributed to a state. This undue emphasis on the attribution theory is an undesirable approach since nothing in article 51 prevents a victim state from exercising its inherent right of self-defence. Additionally, denying a victim state the right to defend itself merely because of the fact that the attacker is no state, would be tremendously unreasonable.64

2 State practice

State practice supports the contestation that non-state actors might be behind armed attacks that invoke the right of self-defence for the victim state. This is particularly true after 9/11-attacks. In the aftermath of those attacks, the UN Security Council published two resolutions in which the right of self-defence against non-state actors is implicitly recognised, namely Resolutions 1368 and 1373.65 In Resolution 1368, the preamble recognises the inherent right of self-defence, without reference to the involvement of a state. Also the North Atlantic Treaty Organisation (hereafter “NATO”) recognised the acts as an armed attack.66 The US considered the events as an armed attack67 and therefore their response encompassed legal self-defence. The reaction of both the Security Council and the NATO confirms the acceptance by the international community of this position. 68

The recognition of self-defence against non-state actors dates back to way before the 9/11-attacks. Reference in this regard can be made to the Caroline case.69 This is a landmark case in the development of the rules of self-defence and defines the parameters for the right of self-defence according to the customary international law.70 The Caroline case showed that an armed attack does not need to emanate from a state. The threat in question came from Canadian rebels on US territory. The US was not supporting the activities of the so-called terrorist group and could therefore not be regarded as responsible for their acts. Yet, the British forces engaged in extraterritorial forcible measures in an attempt to cease the threats. Therefore it can be said that, even in historical terms, the concept of self-defence against non-state actors has been recognised by states.71 This view has been supported by a number of leading commentators, such as Dinstein, Franck, Schmitt and Paust.72

B Particular Issues of Self-Defence against Non-state Actors

From the previous analysis it can be concluded that states have the right to defend themselves against armed attacks of non-state actors. But which criteria should be used to assess the legality of the use of force in a self-defence attack against non-states? The criteria applicable in case of attacks by non-state actors correspond to the general criteria of self-defence (supra), but particular considerations are relevant in this respect.73

1 Scale of the initial armed attack

In the Nicaragua case, the ICJ accepted the existence of a threshold of force for an incident to be considered as an armed attack under article 51 of the UN Charter.74 Namely, that the attack should be of large scale. A fortiori, it can be concluded that this threshold is also applicable in the case of armed attacks of non-state actors.75

A further matter is the ‘accumulation of events’ doctrine, which stipulates that while one incident might be insufficient to qualify as an armed attack, if it is shown that this one event is part of a chain of incidents, then these may in total be accumulated and consequently give rise to self-defence.76

2 Anticipatory self-defence

The same problems appear with regard to anticipatory self-defence against non-state actors as they do in the context of defence against states. In order to assess the legality of self-defence against non-state actors, the general criterion of ‘imminence’ needs to be analysed more in detail.

Force in self-defence against a threatened attack is justified only if that attack is imminent. Any further delay in response to this kind of attacks would result in the inability of the state to take effective steps to avert the threat. Nonetheless, in the context of the contemporary threats, imminence should reflect the wider circumstances of the threat. Namely, when evaluating the imminence of the attack, reference needs to be made to the following aspects: 1. the gravity of the attack (for example the catastrophic use of weapons of mass destruction), 2. the capability of the attacker (for example being is possession of weapons of mass destruction) and 3. the nature of the threat (the risk of wrong assessment of the danger that the attack might cause). Additionally, the use of force in this context may only be used on a proper factual basis and after a good faith assessment of the facts. For example, the possession of weapons of mass destruction is not always a factual basis that can justify the use of force, since it is difficult to determine the intent of the attacker and making an error in this assessment might have catastrophic consequences. The determination of imminence must be made in good faith, meaning based on facts which are capable of objective assessment. Evidence of this good faith analysis should be publicly demonstrable.77

One particular challenge that might be raised in the context of anticipatory self-defence against non-state actors is the difficulty of being informed of the impending non-state group attacks. Non-state actors operate more frequently in clandestine cells and are therefore less vulnerable on being detected on satellite imagery than sizeable militaries of states.78 This issue might cause difficulties in justifying the anticipatory self-defence, since it will be harder to demonstrate the aspects – such as gravity of the attack, capability of the attacker and nature of the threat – which are essential for a threat to be classified as imminent.

3 Necessity and proportionality

Necessity requires that the forcible measures in response to the armed attack can only be justified if there are no alternative means available to effectively respond to the danger and that must be limited to the attainment of legitimate military objectives.79 The ‘no other means’-aspect of necessity reveals a certain potential problem when a non-state actor initiates the armed attack. The primary alternative to forcible measures to end an armed attack from states are diplomatic efforts. Those measures should be undertaken directly with the attacker in order to reach a peaceful solution for the future. If this solution is being tried by the victim state and fails, the victim state has generally exhausted its peaceful options.

In order for states to live up to the necessity requirement of self-defence in case of armed attacks originating from non-state actors, an additional tool in the box of available alternatives should be invoked, namely seeking a solution via the territorial state. As long as this has not been tried, the necessity requirement will not be met and consequently the self-defence will be illegal. Therefore, it can be said that the threshold of necessity is higher in case of attacks of non-state actors compared to the attacks of states.80

When faced with non-state actors, the proportionality test does not invoke any extra evaluations. Nonetheless, assessing the adherence to the proportionality requirement might be harder in the context of self-defence against non-state actors. Both the capabilities and activities of non-state groups are likely to be less obvious than those of states. This makes the proportionality balancing of the response attack against the ongoing attack very complex.81

[...]


1 Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, 'A More Secure World: Our Shared Responsibility’ (2004) UN doc. A/59/565 at 184.

2 J Wouters en T Ruys Internationaal recht en het unilateraal gebruik van geweld door Staten: het Jus ad Bellum onder vuur (October 2007, Instituut voor Internationaal Recht Katholieke Universiteit Leuven, Working Paper Nr. 111) at 3.

3 While the focus in this research essay will be on the right of self-defence, which constitutes a part of the ius ad bellum, side references will be made to the ius in bello since those two areas of the law cannot be treated fully independent from each other.

4 Article 2(4) Charter of the United Nations, 24 October 1945, 1 UNTS XVI (hereafter “UN Charter”).

5 M Schmitt Counter-Terrorism and the Use of Force in International Law (The George C Marshall European Center for Security Studies, The Marshall Center Papers no 5, 2002) at 23.

6 Michal Onderco Armed Force and Non-State Actors: A curious case of the Middle East (Paper Vrije Universiteit Amsterdam, 2010) at 2.

7 Dictionary of the Social Sciences (1 January 2002). "Nonstate actors". Dictionary of the Social Sciences. Cengage Learning. Retrieved 11 June 2012.

8 Gelijn Molier “De oorlog tegen het terrorisme en zelfverdediging tegen niet-statelijke actoren” (2010) 39 Vrede en Veiligheid 4 at 1.

9 Michal Onderco Armed Force and Non-State Actors: A curious case of the Middle East (Paper Vrije Universiteit Amsterdam, 2010) at 2

10 J P Grant International Law (Dundee University Press, Dundee, 2010) at 82.

11 Treaty between the United States and other Powers providing for the renunciation of war as an instrument of national policy 1928, 94 LNTS 57 (Kellogg-Briand Pact 1928).

12 J Wouters en T Ruys Internationaal recht en het unilateraal gebruik van geweld door Staten: het Jus ad Bellum onder vuur (October 2007, Instituut voor Internationaal Recht Katholieke Universiteit Leuven, Working Paper Nr. 111) at 8.

13 Ibid at 9.

14 According to the International Court of Justice (hereafter “ICJ”), customary international law is general practice that is accepted as law. Generally the existence of a rule of customary international law requires the presence of two elements, namely State practice (usus) and the belief that this practice is required, prohibited or allowed as a mater of law (opinion juris). Cf. Continental Shelf case (Libyan Arab Jamahiriya v Malta) [1985]ICJ Rep 29 at §27.

15 According to article 53 of the Vienna Convention, a ius cogens norm is “a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

16 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) 1986 ICJ Rep 14.

17 Article 42 of the UN Charter.

18 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) 1986 ICJ Rep 14 (hereafter “Nicaragua case”).

19 Nicaragua case at para193.

20 Examples of this can be found in inter alia paragraphs 183, 193, 195 and 211 of the Nicaragua case.

21 Nicaragua case at para 176.

22 Jan Wouters en Tom Ruys Internationaal recht en het unilateraal gebruik van geweld door Staten: het Jus ad Bellum onder vuur (October 2007, Instituut voor Internationaal Recht Katholieke Universiteit Leuven, Working Paper Nr. 111) at 13.

23 Nicaragua case at para 200.

24 C Gray International Law and the Use of Force (2nd ed., Oxford University Press, Oxford, 2004) at 101-104.

25 M Halberstam ”The right to self-defence once the Security Council takes action” (1996) 17 Mich J Int’l L 229 and EV Rostow “Until what? Enforcement action or collective self-defense?” (1991) 85 AJIL 506.

26 Olivier Corten The Law Against War. The Prohibition on the Use of Force in Contemporary International Law (Hart Publishing, Oregon, 2010) at 402.

27 JP Cot and A Pellet La Charte des Nations Unies (3th ed., Economica, Paris, 2005) at 1357.

28 Nicaragua case at para 191.

29 Y Dinstein War, Aggression and Self-Defence (4th ed., Cambridge University Press, Cambridge, 2005) at 193.

30 Oil Platforms (Iran v United States of America) 2003 ICJ Rep 195 at para 72.

31 Nicaragua case para 231.

32 F Berman, J Gow, C Greenwood, V Lowe, A Roberts, P Sands, M Shaw, G Simpson, C Warbrick, N Wheeler, E Wilmshurst, M Wood ”The Chatham House Principles of International Law on the Use of Force on the Use of Self-Defence” (2006) 55 ICLQ 966 at 6.

33 The term ’imminent’ means being on the verge of materialising. Cf. R Higgens The Development of International Law Through the Political Organs of the United Nations (Oxford University Press, London/New York/Toronto, 1963) at 199.

34 L Henkin How Nations Behave (2nd ed., Columbia University Press, New York, 1979) at 141-142.

35 Article 31(1) United Nations Vienna Convention on the Law of Treaties 1155 UNTS 331 (signed 23 May 1969, entered into force 27 January 1980).

36 R Y Jennings “The Caroline and McLeod Cases” (1938) 32 AJIL 82.

37 D W Bowett Self-Defence in International Law (Manchester University Press, Manchester, 1958) at 188-192.

38 Letter, dated 6 August 1842, from Mr Webster to Lord Ashburton, Department of State, Washington, available at http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm.

39 N Lubell Extraterritorial Use of Force against Non-State Actors (Oxford University Press, Oxford, 2010) at 55.

40 “We did not want exercised the right of self-defense before an armed attack had occurred” quotation in Minutes of 48th meeting of US delegation, SF (20 May 1945) 1 Foreign Relations of the US (1945) 813, 818, quoted in M Franck Resource to Force: State action against threats and armed attacks (Cambridge University Press, Cambridge, 2002) at 50-51.

41 E Cannizzaro and P Palchetti Customary International Law on the Use of Force (Martinus Nijhoff Publishers, Dordrecht, 2005) at 347.

42 C Greenwood ”International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq” (2003) 4 San Diego ILJ 7.

43 Jan Wouters en Tom Ruys Internationaal recht en het unilateraal gebruik van geweld door Staten: het Jus ad Bellum onder vuur (October 2007, Instituut voor Internationaal Recht Katholieke Universiteit Leuven, Working Paper Nr. 111) at 18.

44 For example the UN Secretary-General confirmed the legality of pre-emptive self-defence in 2005. See Report of the Secretary-General of the United Nations ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (2005) A/59/2005.

45 F Berman, J Gow, C Greenwood, V Lowe, A Roberts, P Sands, M Shaw, G Simpson, C Warbrick, N Wheeler, E Wilmshurst, M Wood ”The Chatham House Principles of International Law on the Use of Force on the Use of Self-Defence” (2006) 55 ICLQ 966 at 7-9.

46 David Kretzmer “The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum” (2013) 24 Eur J Int’l L 235 at 235.

47 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 1996 ICJ Rep 264 at para 41.

48 Jan Wouters en Tom Ruys Internationaal recht en het unilateraal gebruik van geweld door Staten: het Jus ad Bellum onder vuur (October 2007, Instituut voor Internationaal Recht Katholieke Universiteit Leuven, Working Paper Nr. 111) at 24.

49 David Kretzmer “The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum” (2013) 24 Eur J Int’l L 235 at 235.

50 Olivier Corten The Law Against War. The Prohibition on the Use of Force in Contemporary International Law (Hart Publishing, Oregon, 2010) at 484.

51 C Greenwood ”Self-Defence” (Max Planck Encyclopedia of Public International Law, April 2011) at 8.

52 G P Fletcher and J D Ohlin Defending Humanity. When Force Is Justified and Why (Oxford University Press, Oxford, 2008) at 92.

53 N Lubell Extraterritorial Use of Force against Non-State Actors (Oxford University Press, Oxford, 2010) at 30.

54 Canadians for Justice and Peace in the Middle East Factsheet: The Legal Right to Self-Defence (Factsheet Series 42, June 2008).

55 Jan Wouters en Tom Ruys Internationaal recht en het unilateraal gebruik van geweld door Staten: het Jus ad Bellum onder vuur (October 2007, Instituut voor Internationaal Recht Katholieke Universiteit Leuven, Working Paper Nr. 111) at 24.

56 N Lubell Extraterritorial Use of Force against Non-State Actors (Oxford University Press, Oxford, 2010) at 31.

57 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 2004 ICJ Rep 219 (hereafter “Advisory Opinion on the Wall”).

58 N Lubell Extraterritorial Use of Force against Non-State Actors (Oxford University Press, Oxford, 2010) at 31.

59 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 2004 ICJ Rep 219 at para 139.

60 Nicaragua case at paragraphs 131, 195, 229 and 230.

61 N Lubell Extraterritorial Use of Force against Non-State Actors (Oxford University Press, Oxford, 2010) at 32.

62 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) 2005 ICJ Rep 116.

63 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) 2005 ICJ Rep 116 at paragraphs 146-147.

64 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) 2005 ICJ Rep 116, separate opinion of Judge Kooijmans at paragraphs 29-30.

65 UN Security Council Resolution 1368, S/RES/1368 (2001) and UN Security Council Resolution 1373, S/RES/1373 (2001).

66 NATO Press Release 124, 12 September 2001, available at http://www.nato.int/docu/pr/2001/p01-124e.htm>.

67 See the position expressed by John B Bellinger III, Legal Adviser to the Secretary of State: J Bellinger Legal Issues in the War on Terrorism (International Humanitarian Law Project Lecture Series, London School of Economics, 2006).

68 N Lubell Extraterritorial Use of Force against Non-State Actors (Oxford University Press, Oxford, 2010) at 34.

69 R Y Jennings “The Caroline and McLeod Cases” (1938) 32 AJIL 82.

70 N Lubell Extraterritorial Use of Force against Non-State Actors (Oxford University Press, Oxford, 2010) at 34.

71 Ibid.

72 See Y Dinstein War, Aggression and Self-Defence (4th ed., Cambridge University Press, Cambridge, 2005), T M Franck Resource to Force: State action against threats and armed attacks (Cambridge University Press, Cambridge, 2002), C Greenwood ”International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq” (2003) 4 San Diego ILJ 7, M Schmitt Counter-Terrorism and the Use of Force in International Law (The George C Marshall European Center for Security Studies, The Marshall Center Papers no 5, 2002) and J Paust “Use of Armed Force against Terrorists in Afghanistan, Iraq and Beyond” (2002) 35 Cornell Int’l L J 533.

73 F Berman, J Gow, C Greenwood, V Lowe, A Roberts, P Sands, M Shaw, G Simpson, C Warbrick, N Wheeler, E Wilmshurst, M Wood ”The Chatham House Principles of International Law on the Use of Force on the Use of Self-Defence” (2006) 55 ICLQ 966 at 12.

74 Nicaragua case at para 195.

75 N Lubell Extraterritorial Use of Force against Non-State Actors (Oxford University Press, Oxford, 2010) at 50.

76 Ibid at 51.

77 F Berman, J Gow, C Greenwood, V Lowe, A Roberts, P Sands, M Shaw, G Simpson, C Warbrick, N Wheeler, E Wilmshurst, M Wood ”The Chatham House Principles of International Law on the Use of Force on the Use of Self-Defence” (2006) 55 ICLQ 966 at 9.

78 D Koplow ”That Wonderful Year: Smallpox, Genetic Engineering, and Bio-Terrorism” 62 Maryland L R 417 (2003).

79 F Berman, J Gow, C Greenwood, V Lowe, A Roberts, P Sands, M Shaw, G Simpson, C Warbrick, N Wheeler, E Wilmshurst, M Wood ”The Chatham House Principles of International Law on the Use of Force on the Use of Self-Defence” (2006) 55 ICLQ 966 at 57.

80 N Lubell Extraterritorial Use of Force against Non-State Actors (Oxford University Press, Oxford, 2010) at 46.

81 Ibid at 66.

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Pages
52
Year
2014
ISBN (eBook)
9783656842309
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9783656842316
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1.8 MB
Language
English
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v284136
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University of Auckland
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israel-gaza conflict self-defence atrocities gaza

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Title: The 2014 Israel-Gaza Conflict. Self-Defence or Atrocities in Gaza?