Is Israel’s Use of Force in Gaza Covered by the Jus Ad Bellum?

On any account, the conflict in Gaza is depressing. It is clear that Hamas’ firing of rockets which are incapable of distinguishing between military and civilian targets is a violation of international humanitarian law. However, the question whether Israel’s actions in Gaza, which have reportedly resulted in the death of over 2000 people, comply with international law generates much more heated debate. As Professor Geir Ulfstein has pointed out, in a recent post on Just Security, in discussions about whether Israel has violated international law, “the focus is only on violations of international humanitarian law (jus in bello), not on breaches of restrictions following from the right of self-defence (jus ad bellum).” An example is this post by Mark Ellis, Executive Director of the International Bar Association on Huffington Post. One of the key questions that arise in connection with Israel’s actions in Gaza is whether its actions are proportionate. In a later post I will focus on proportionality and what it might mean in this conflict. Suffice it to say for now that as Geir Ulfstein notes (and as pointed out by Marko in this post) the “requirements of proportionality are different in international humanitarian law (IHL) and as a restriction on the right of self defence”. One may also note that even if every individual acts of targeting by a party to a conflict is proportionate under IHL, the overall campaign might still be disproportionate under the law relating to self defence in the jus ad bellum. Prof Ulfstein ends his post by saying that “the restrictions on self-defence for Israel’s military operations should receive more attention”. This posts responds to that call.

In this post, I wish to address the question whether Israel is bound by the law relating to self-defence in the action it is taking in Gaza. Put differently, the question is whether the international law limitations on the right of self-defence apply to Israeli action in Gaza? As Israel’s actions in Gaza are taken in response to Hamas’ actions and Israel claims to be acting in self defence, our intuitions might suggest that we ought to assess whether Israel’s actions comply with the international law limits on self defence. In particular, one may ask whether Israel’s actions are proportionate in the jus ad bellum sense.

Despite first impressions, it is not at all obvious that the jus ad bellum applies to Israel’s use of force in Gaza. When one scratches beneath the surface, the question appears more complicated. We have had this discussion before on this blog. Indeed, this discussion about the application of the jus ad bellum to Israel’s actions in Gaza was one of the very first issues we discussed when this blog was founded in December 2008/January 2009. At that time, it was in the context of Operation Castlead which was going on at the time. In a post which generated really excellent discussion, Marko, after distinguishing between proportionality under IHL, the jus ad bellum and international human rights, stated that:

“But for the life of me, I just can’t see a jus ad bellum issue in regard of Israel’s actions in Gaza. This is simply not self-defense within the meaning of Article 51 of the UN Charter . . .”

His argument at the time was that Article 51 and the right to self defence under international law did not apply to Israel’s action in Gaza because self-defence is an exception to the prohibition of the use of force under international law (contained in Art. 2(4) of the UN Charter and customary international law). If Art. 2(4) is not engaged then the self-defence is not relevant. It just doesn’t come into play as a way of assessing a use of force. Since, in Marko’s view Palestine (Gaza included) was not a state in 2009, Israel’s actions were not even potentially in breach of Art. 2(4) and therefore a claim of self defence was neither a relevant nor an appropriate standard for assessing Israel’s use of force.

In considering whether Israel is bound by the jus ad bellum in its actions in Gaza in 2014, the following questions are relevant:

• Is the law relating to self-defence only engaged, in circumstances when a state is acting in a manner which would otherwise breach the prohibition of the use of force under international law? Or is there an independent right of self-defence which applies even when the prohibition of force is not engaged?
• When does the prohibition of the use of force become engaged under international law? In particular does the prohibition of the use of force only apply when a state uses force against another state?
• Is Palestine (including Gaza) a state?
• If Palestine is not a state, could Israel’s use of force even potentially be in breach of the prohibition of the use of force in the UN Charter such that Israel would need to rely on Art. 51?

Is Self-Defence only Applicable when Art. 2(4) of the UN Charter is Engaged?

Unless one asserts that there is a general right to self defence, which is independent from the prohibition of the use of force, then Marko is surely right that if there is no potential breach of Art. 2(4), the right of self-defence (and its limitations of armed attack, necessity and proportionality) is just inapplicable as a matter of international law. As a general matter, it seems to me that Marko’s point is right. A state’s use of force within its own territory (for example against a rebel group) is not governed by Art. 51.  As Corten states ( in The Law Against War: The Prohibition of the Use of Force in Contemporary International Law, p. 400): “Its purpose is to govern relations among States . . .” It is for this reason that we do not usually analyse a state’s response to internal threats under the jus ad bellum (though see this previous post by Theodore Christakis and Karine Bannelier discussing and rejecting claims by the French government that its action in Mali against rebels could be justified as collective self defence with the Malian government).

In support of Marko’s claim is the International Law Commission’s commentary to Art. 21 of the Articles on State Responsibility (which deals with self-defence). It states that:

“(1) The existence of a general principle admitting self-defence as an exception to the prohibition against the use of force in international relations is undisputed. Article 51 of the Charter of the United Nations preserves a State’s ‘inherent right’ of self-defence in the face of an armed attack and forms part of the definition of the obligation to refrain from the threat or use of force laid down in Article 2, paragraph (4). Thus a State exercising its inherent right of self-defence as referred to in Article 51 of the Charter is not, even potentially, in breach of Article 2,paragraph (4).

(2) Self-defence may justify non-performance of certain obligations other than that under Article 2, paragraph (4), of the Charter, provided that such non-performance is related to the breach of that provision.”

This position makes it clear that Art. 51 and self defence only comes into play when there is a potential breach of Art. 2(4).

Are Israel’s actions even Potentially Caught by Article 2(4) of the UN Charter

If Art. 51 and self-defence only arise when Art. 2(4) is implicated by the action of the state acting in self-defence (NOTE: This is NOT the same question as whether self-defence can be relied in response to attacks by non-state actors), the question is then: when is Art. 2(4) implicated?

Art. 2(4) provides that:

“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.”

Clearly a use of force by one state against another state (i.e on its territory and without its consent) is covered by the prohibition of the use of force, unless there is some exception to justify it under international law. But is Article 2(4) only applicable when a state (in our scenario, the state acting in self defence, Israel) uses force on the territory of another state? If the answer to that question is in the affirmative, and if Palestine (Gaza) is not a state then Israel is not using force on the territory of another state, and thus Art. 2(4) is not implicated.

So the question of whether Palestine is a state takes on added significance. If Palestine is a state (a matter we have covered extensively on this blog – here, here, here, and here) then the jus ad bellum, and consequently the proportionality restrictions in the law of self defence, would clearly impose constraints on Israel.

Does Art. 2(4) apply beyond Inter-State Relations?

However, if Palestine is not a state, the question whether Art. 2(4) of the UN Charter, and consequently the law of self defence, applies beyond inter-state relations takes on a particular importance. Corten, in Chapter 3 of The Law Against War: The Prohibition of the Use of Force in Contemporary International Law, deals with the issue of use of force against non-state entities comprehensively.  It could be argued that Art. 2(4) is engaged not only in inter-state uses of force but is also engaged when a state uses force “in a manner inconsistent with the Purposes of the United Nations”. This view was raised in the discussion to Marko’s post, with Carsten Hoppe citing (and quoting) all the official languages of the UN Charter to confirm his interpretation. On this view, a use of force that is inconsistent with the purposes contained in Art. 1 of the Charter, even if not between states, is also potentially unlawful under Art. 2(4), and therefore can be justified under the law of self-defence.

Arguably, those words at the end of Art. 2(4) operate to strengthen (and were intended to strengthen) the prohibition of the use of force extend the prohibition between inter-state uses of force. However, there are 2 counterarguments that should be examined. First, as Marko pointed out in the comments to his earlier post, Art. 2(4) only prohibits the use of force in ‘international relations’ before it even refers to the territorial integrity/political independence of states or the purposes of the UN. One might take the view that ‘international relations’ means relations between states. This is Corten’s view (p. 127 – Art. 2(4) “purports only to govern the use of force between States”). A broader view would state that ‘international relations’ simply means actions outside a state’s territory. However, it is hard to find support for that meaning of the term. In Hamdan v Rumsfeld 548 U.S. 557 (2006), the United States Supreme Court held, in interpreting Common Article 3 of the Geneva Conventions that “non-international” means not between states.

The second point that is relevant is that even if force, that is not between states, is nonetheless prohibited when contrary to the purposes of the UN Charter, it is not easy to decide when force will be contrary to the purposes of the UN Charter. Which purpose of the UN Charter is potentially breached by Israel’s actions in Gaza? Is it the purpose of maintaining international peace and security? (Israel might argue that it is not the one failing to maintain the peace) Or is it the obligation to develop friendly relations among nations based on respect for the principle of self-determination of peoples. Although, Palestine if not a state, it would be a self-determination unit. However is it the case that every use of force against a self-determination unit fails to respect the purposes of the UN? Such an argument would suggest that uses of force by colonial powers to prevent independence, or by national liberation movements, in addition to being in breach of the principle of self-determination, was also contrary to Art. 2(4). Such claims were indeed made during the colonial era and might find support from General Assembly resolutions which express the view that states have the duty to refrain from forcible action which deprives people of the right to self determination (eg GA Res 2625 & Res 1514). However, these claims were consistently resisted by Western states and it is not clear they represent either customary international law or an interpretation that represents the agreement of parties to the Charter. The fact that self-determination struggles were upgraded in Additional Protocol I to the Geneva Conventions, to international armed conflicts might also support the view that those conflicts occur in international relations. However, Israel and some other states have not accepted that position in the jus in bello and its relevance for the jus ad bellum would be controversial. I don’t intend to resolve the issue here but simply to point out that it is not crystal clear that a use of force against a self-determination unit is covered by Art. 2(4).

 In conclusion, before one assesses how the law of self defence might apply to Israel’s actions, one might first have to answer the question whether Palestine is a state. Or at any rate, one would have to consider whether the prohibition of the use of force applies beyond the inter-state context. Only then can one start to assess what jus ad bellum proportionality means for Israel’s actions in Gaza.