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Israel’s Wars and Occupation Today are not about Self Defense
FOREIGN POLICY IN FOCUS
11/04/2024
By Stephen R. Shalom |
"( Foreign Policy in Focus ) – “Israel has the right to defend itself,” President
Joseph Biden, Vice President Kamala Harris, and countless commentators have
declared multiple times over the past year. But does Israel in fact have such a
right?
Even if there were an Israeli right to self-defense, such a right would be limited by
the standard of proportionality. This is not only the requirement of proportionality
for any individual military operation, but of Israel’s response to the October 7
attacks taken as a whole: are the harmful effects of Israel’s military campaign
outweighed by the benefits of achieving the claimed legitimate aims of the
campaign?
Israel’s response certainly does not meet this standard given that it has subjected
the people of Gaza to what the International Court of Justice (ICJ) has deemed a
“plausible” genocide. Amnesty International called the “intensity and cruelty” of
the Israeli government’s bombardment “unparalleled,” with a “pace of death” The
New York Times found to have “few precedents in this century.” Oxfam and
Human Rights Watch characterized Israel’s military actions as “indiscriminate and
disproportionate attacks,” and the United Nations Independent Commission of
Inquiry found a “concerted policy” to destroy Gaza’s health-care system.
But does Israel have a right to self-defense at all?
Digging into the Arguments
On one level, of course it does. When confronted by someone about to commit an
unjust act, such as killing a civilian, there is a right to self-defense. Consider a
Soviet or American soldier in World War II preparing to unjustly slaughter a group
of Japanese or German civilians. Even though the victims are citizens of evil
regimes engaged in an unjust war, they still are not morally liable to being
butchered. Therefore, a Japanese or German soldier, despite participating in an
unjust war, would be justified in using force in defense of the endangered
civilians.
Accordingly, Israeli security forces were engaged in legitimate self-defense when
they acted to defend the innocent victims of October 7. Moreover, Israeli civilians
who participated in “individual self-defense or defense of others” on that day did
not thereby become lawful military targets. (Otherwise, as the International
Committee of the Red Cross noted, “this would have the absurd consequence of
legitimizing a previously unlawful attack.”) They too were engaged in legitimate
self-defense.
On another level, however, Israel does not have the right of self-defense to an
attack against its illegal long-standing occupation. Russian troops in occupied
Ukraine cannot claim self-defense when they are attacked by Ukrainian forces.
Japanese troops couldn’t claim self-defense when they were attacked by
guerrillas in occupied China or the occupied Philippines during World War II.
Russia’s and Japan’s occupations were illegal and their armies’ only morally
legitimate recourse in the face of resistance was to end those occupations. In the
same way, the Israeli occupation of the Palestinian territories is illegal and unjust
and Israel cannot claim self-defense when Palestinians struggle by legitimate
means to end the occupation. The proper Israeli response to such Palestinian
actions is not self-defense but full withdrawal from the occupied territories.
Nor can Israel’s military operations in Gaza be deemed self-defense as a means
of freeing hostages and thus ending an unjust abuse of civilians. The
overwhelming majority of freed hostages were released in exchanges (105) or
unilateral Hamas actions (4), while the number freed by the IDF (8) was almost
certainly exceeded by the number inadvertently killed by them and far exceeded
by the number of Palestinian civilians killed in the rescue efforts. Family members
of the hostages charge that, in rejecting negotiations, “Netanyahu is knowingly,
deliberately and protractedly abandoning the hostages held by Hamas in Gaza.”
A former hostage family spokesperson stated that they had learned that “Hamas
had offered on October 9 or 10 to release all the civilian hostages in exchange for
the IDF not entering the [Gaza] Strip, but the [Israeli] government rejected the
offer.” Israel’s assault on Gaza has not been aimed to secure the release of its
hostages but to defend (and expand) its illegal occupation, which it has no right
to do.
Illegal Occupation
Since the ICJ only issued its advisory opinion declaring the Israeli occupation of
Palestinian territories to be illegal in July 2024, one might argue that the
occupation wasn’t illegal before that date. But the Court’s reasoning did not draw
upon any recently occurring event that had rendered the occupation illegal.
Rather it pointed to territorial acquisition and denial of self-determination —
longstanding features of Israeli policy:
The Court considers that the violations by Israel of the prohibition of the
acquisition of territory by force and of the Palestinian people’s right to self-
determination have a direct impact on the legality of the continued presence of
Israel, as an occupying Power, in the Occupied Palestinian Territory. The
sustained abuse by Israel of its position as an occupying Power, through
annexation and an assertion of permanent control over the Occupied Palestinian
Territory and continued frustration of the right of the Palestinian people to self-
determination, violates fundamental principles of international law and renders
Israel’s presence in the Occupied Palestinian Territory unlawful. (Para 261)
In any event, the illegality of the occupation was identified before this ICJ
advisory opinion. In 2017, the Special Rapporteur on the Occupied Palestinian
Territories Michael Lynk submitted a report endorsing the four elements of a test
proposed by international law scholars for whether an occupation was legal: (a)
The belligerent occupier cannot annex any of the occupied territory; (b) The
belligerent occupation must be temporary and cannot be either permanent or
indefinite; and the occupant must seek to end the occupation and return the
territory to the sovereign as soon as reasonably possible; (c) During the
occupation, the belligerent occupier is to act in the best interests of the people
under occupation; and (d) The belligerent occupier must administer the occupied
territory in good faith, including acting in full compliance with its duties and
obligations under international law and as a member of the United Nations. Lynk
found that Israel failed all four elements of this test.
And in 2022, the report of the Independent International Commission of Inquiry
on the Occupied Palestinian Territory found Israel’s occupation to be illegal,
focusing “on two indicators that may be used to determine the illegality of the
occupation: the permanence of the Israeli occupation, … and actions amounting
to annexation, including unilateral actions taken to dispose of parts of the
Occupied Palestinian Territory as if Israel held sovereignty over it.”
Israel argues that its occupation is legal (or even not an occupation at all)
because it acquired the West Bank and Gaza as the result of a defensive war
against an attack waged by neighboring Arab states. In fact, however, in 1967 it
was Israel that attacked first. Those who excuse Israel’s action as justified
preemption point to the Arab armies mobilizing on its borders. But whatever panic
there was among the public, those who understood the military situation —
policymakers in Tel Aviv and Washington — knew quite well that even if the Arabs
had struck first, Israel would have easily prevailed in any war. Egypt’s leader was
looking for a way out and had agreed to send his vice-president to Washington
for negotiations. Before that could happen, Israel attacked. Menachem Begin,
then an Israeli cabinet member, recalled that we “had a choice.” Egyptian Army
concentrations did not prove that Nasser was about to attack. “We must be
honest with ourselves. We decided to attack him.”
Yet, even if it were the case that the 1967 war was wholly defensive on Israel’s
part, this could not justify Israel’s continued rule over Palestinians. A people do
not lose their right to self-determination because governments that had no legal
or moral right to be ruling parts of Palestine (Jordan and Egypt) went to war.
Whatever penalties would have been warranted to impose on Amman and Cairo
for having started the war, there was no basis for punishing the Palestinian
population by forcing them to submit to foreign military occupation.
Moreover, as Michael Bothe has noted, even if Israel’s war in 1967 had been a
lawful act of self-defense, “taking advantage of the situation for the purpose of
annexation … would go beyond the limits of what is allowed as self-defense[:]
namely[,] measures which are militarily necessary and proportionate means of
self-protection.”
“Self Defense,” Digital, Dream / Dreamland v3 / Crop2Comic, 2024
Israel argues that since it withdrew its forces from Gaza in 2005, the territory is
no longer occupied. But both legally and practically, Israel’s withdrawal did not
end the occupation. As John Dugard, the U.N.’s then Special Rapporteur on the
Occupied Palestinian Territories, noted in 2006, Gaza remained under Israel’s
control, with Israel retaining control of Gaza’s air space, sea space, and (with
Egypt) land borders. And Human Rights Watch stated in 2008 that “even though
Israel withdrew its permanent military forces and settlers in 2005, it remains an
occupying power in Gaza under international law because it continues to exercise
effective day-to-day control over key aspects of life in Gaza.” As the Israeli
human rights organization Gisha observed, if Israel had truly ended the
occupation, then it could not prohibit Gaza from trading by sea or air with other
nations, or prevent people from coming in and out, or declare “no go zones” within
the territory.
The same conclusion follows from basic principles of morality. Regardless of the
legal status of the occupation, it surely cannot be morally acceptable to maintain
a people under occupation and deny them self-determination for more than 50
years. Accordingly, on moral grounds there can be no right to self-defense on
behalf of maintaining that occupation.
The Invasion of Lebanon
The Biden administration has used the same “Israel has the right to defend itself”
language with respect to Netanyahu’s war against Hezbollah. Does Israel have
such a right in this case?
As in Gaza, Israel’s bombing campaign in Lebanon has placed civilians at grave
risk of harm. But it’s not just Israel’s illegitimate war tactics that negate any Israeli
right to self-defense here. One of the rules of customary international law is that
the exercise of the right of self-defense is subject to the condition of necessity.
There is a corresponding moral standard from just war theory of last resort.
According to these principles, it cannot be right to go to war when there exists
some other, less violent, and less costly (in terms of human lives) means of
achieving a just cause.
On October 8, 2023, after Israel launched its assault on Gaza in response to
Hamas’s attack the previous day, Hezbollah fired some rockets at military targets
in Shebaa Farms, a small piece of land occupied by Israel. Lebanon claims
Shebaa Farms; Israel says it is part of the Israeli-occupied Golan Heights,
conquered from Syria in 1967 and annexed by Israel in 1981. Israel’s annexation
was declared null and void by a unanimous Security Council resolution and
recognized by no country in the world other than Israel, until the Trump
administration did so in 2019. Syria claims Shebaa Farms belongs to Lebanon,
but neither Syria nor Israel has responded to the UN secretary general’s 2007
proposal for the demarcation of the border.
In any event, Israel retaliated for the Hezbollah attack, and the two sides
proceeded to exchange fire across the border, with a majority of the projectiles
coming from Israel, and with a large majority of the casualties, both military and
civilian, occurring in Lebanon. Tensions increased over the summer, when what
was likely an errant Hezbollah rocket killed 12 youngsters in a Druze village in the
Golan. Israel assassinated a Hezbollah commander in Beirut (along with several
civilians, wounding dozens of others), air strikes and rocket fire ensued, but by the
end of August, the border had quieted down. Then in mid-September, Israel
unleashed its pager and walkie-talkie attacks (condemned as war crimes by most
human rights groups). Israel followed with extensive air bombardment and then a
ground invasion into Lebanon. Was this justified self-defense?
Israel could have ended the Hezbollah rocket attacks at any point over the past
year had it accepted a ceasefire in Gaza. (During the brief Gaza ceasefire in
November 2023, Hezbollah had held its fire.) Of course, no country wants to be
pressured to choose a policy by military threat, but morally and legally, the
decision as to whether to accept a Gaza ceasefire was not optional for Israel.
When one is committing massive human rights violations, it is not discretionary
whether to continue doing so. As B’Tselem, the Israeli human rights group, stated
in January, the only way to implement the ICJ order calling on Israel to prevent
acts of genocide “is through an immediate ceasefire. It is impossible to protect
civilian life as long as the fighting continues.” In May, the ICJ ordered Israel to end
its Rafah offensive. Again, for the Israeli government this wasn’t an option.
Israel had another opportunity to bring calm to the border, and perhaps much
more, without needing to unleash a new, major war.
A few days after the pager bomb attacks, the United States and France drafted a
call for a 21-day pause in fighting to allow for diplomacy aimed at reaching a
longer-term truce. Washington informed the UN and Lebanon that Israel agreed.
The New York Times reported that “the leader of Hezbollah, Hassan Nasrallah,
also sent word through an intermediary that his powerful militia supported the
call for a cease-fire.” On September 25, the plan was publicly announced, with
the backing of Australia, Canada, the European Union, Germany, Italy, Japan,
Saudi Arabia, United Arab Emirates, the United Kingdom, and Qatar. Peace
seemed possible. U.S. officials even expressed hope that the peace might
extend to Gaza.
According to The Times report, however:
Two days later, before diplomats could draw up a detailed cease-fire proposal,
Prime Minister Benjamin Netanyahu of Israel declared at the United Nations that
Israel must “defeat Hezbollah in Lebanon.” Soon after, huge bombs fell on Beirut’s
southern outskirts, killing Mr. Nasrallah and extinguishing any immediate
prospect of a cease-fire.… progress toward a cease-fire was further along than
previously known, but it was halted abruptly when Israel killed Mr. Nasrallah.
The Times noted that the killing of Nasrallah was “the second time in 10 weeks
that Israel had quashed progress toward a cease-fire by striking a militia leader;
Israel’s assassination in July of Ismail Haniyeh, the political leader of Hamas, led
to the hardening of that group against any Gaza cease-fire proposal.”
Nasrallah certainly had blood on his hands. Hezbollah’s role in Syria during the
civil war there was reprehensible. But his killing and the ensuing war can hardly
be described as Israel exercising its right to defend itself. Rather than self-
defense, these represented steps toward an unnecessary—and hence unjust—
war, with all the horrible consequences that entails.
Self-defense is a basic right of individuals and countries. But it is not justified
self-defense when it represents the defense of an unjust occupation. And it is not
legitimate self-defense when war was neither necessary nor a last resort.
Stephen R. Shalom is emeritus professor of political science at William Paterson
University in New Jersey. He is on the editorial board of New Politics and a
member of Jewish Voice for Peace of Northern NJ."
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