Self Defence

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Does the ICJ have the Legal Authority to Pronounce itself on the Right to Self-Defence?

Jesse Lempel raises a profound issue in his recent post concerning the South African application for provisional measures against Israel in the Gaza genocide case. He asserts that the International Court of Justice, the principal judicial organ of the United Nations, cannot ‘order provisional measures that impair a state’s right to self-defence.’ The argument appears to be that the right to self-defence is an ‘inherent’ attribute of states according to Article 51 of the Charter. Hence, the application of the right rests entirely with the state invoking it. For the Court to restrict that entitlement would be a violation by the Court of the UN Charter. This view exposes the tension between two values reflected in the international system. On the one hand, there is the neo-classical right of the state to preserve itself from external harm. The state, it is argued, must remain free to take the action it judges necessary in order to safeguard its own existence. On the other hand, there is the modern view. This view focuses on the…

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Why the ICJ Cannot Order Israel to Stop the War in Gaza as a Provisional Measure

Will the International Court of Justice (ICJ) order Israel to cease or curtail its military operations in Gaza as a provisional measure, as South Africa requested in its proceedings against Israel under the Genocide Convention? That is the “big question,” as Professor Mike Becker put it. And Israeli officials are reportedly concerned about the “real…

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Self-Defence as an Exception to the Principle of Non-Use of Force: Debunking the Myth

Introduction Marko Milanovic recently wrote a blog for EJIL: Talk! examining whether Israel can rely on the right of self-defence to justify its military action against Hamas. Marko’s post addresses many difficult questions relating to the law of self-defence and is a must read. In this post I want to focus on one of Marko’s…

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A plea for a right of Israel to self-defence in order to restrict its military operations in Gaza: when jus ad bellum comes to the aid of jus in bello

Numerous States, making statements before the UN Security Council or the UN General Assembly during the last resumption of its tenth Emergency Special Session, have recognized the right of Israel to respond in self-defence to the Hamas’ October 7 attacks in accordance with international law. Those States include the United States (S/PV.9439, at 3), the United…

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Does Israel Have the Right to Defend Itself?

This is a deceptively simple question. It has several possible answers, each of which rests on different (and highly contested) assumptions. In this post I will try to explain what these possible answers are, and what are their implications. I don’t myself know what the ‘correct’ answer here is. It is not my intention to argue for one.

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