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Gaza aggression is not self-defence

Aug 09,2014 - Last updated at Aug 09,2014

The type, character and magnitude of the holocaust against the Palestinians of the Gaza Strip is being labelled by Israel as an act of self-defence.

US President Barack Obama uses the same characterisation without scrutiny, and so do other Western countries.

This claim is grossly faulty for several reasons. Obama, himself a professor of law and a graduate of Harvard Law School, must be fully aware of the scope and meaning of self-defence.

Under the UN Charter law, among whose principal authors was also the US, it is decisively prohibited for any state to use force except in case of self-defence (Art. 51 of the Charter).

Such use of force is only permissible if the political independence and/or territorial integrity of the target state is seriously threatened (Art. 2/4). If the force is used, for example, in retaliation for an incursion by an air force fighter or the crossing of a small number of troops into the territory of another country, the target state cannot claim that it is being attacked and use force on the grounds of self-defence.

Such incursions do not and cannot threaten the territorial integrity or political independence of the target state.

Considering these legal prescriptions, can anyone reasonably think that the Palestinian resistance, before or even after the use of missiles, threatens the territorial integrity or the political independence of Israel?

It does not take an expert in strategy or an adviser in armament to answer this question. It is a well-established fact that Israeli armed forces are the strongest in the region, bolstered by priceless support from the US.

Moreover, Israel is a nuclear power that has not been subject to any inspection by the International Atomic Energy Agency.

It is true that the US was able to have the UN Security Council issue Resolution No. 1368 of September 12, 2001, on the heels of the September 11 barbaric and senseless attack by Al Qaeda.

In that resolution, the Security Council considered that combating terrorism by force was permissible in self-defence. This undoubtedly gave self-defence a new dimension.

Israel rushed to take advantage of this new legal development regarding the concept of self-defence.

When the International Court of Justice was labouring to issue its Advisory Opinion on the “wall” case, Israel pleaded self-defence.

It said that the construction of the wall was consistent with Article 51 of the UN Charter and with UN Security Council Resolutions 1368 and 1373 that were issued after the September 11 terrorist acts.

The court considered the Israeli representative’s address to the UN General Assembly, who said that the UN “recognised the right of states to use force in self-defence against terrorist attacks”, but rejected all Israeli arguments.

As to Article 51, the court said that it dealt with the use of force by one state against another state. Israel, in this situation, does not attribute any attack against it to another state.

It is in fact a “threat… [that] originates within [Israel] and not outside that territory”, decided the court, referring to the occupied Palestinian territory under Israel’s control.

The court concluded that Article 51 “has no relevance in this case”. It went further, saying that relying on the Security Council resolution allowing the use of force to combat terrorism is inapplicable to Israel’s case, because the situation is not similar to that envisaged under that resolution.

Again, the court relied on the fact that the threat originates from a territory under Israeli control.

Taking these international law premises into consideration when evaluating the onslaught on Gaza, Israel’s and its Western supporters’ fallacy in claiming self-defence becomes obvious.

The Gaza Strip is still part and parcel of the occupied Palestinian territory, the withdrawal of settlers notwithstanding.

Gaza is still under the conclusive control of the Israeli military government, from the air, sea and land. Therefore, any threat directed against Israel from Gaza does not tally with the claim that Israel acts in self-defence, according to Article 51; it “is not relevant”, the court said.

The same conclusion would be upheld if the threat coming from Gaza fell under the scope of Resolution 1368.

The Gaza Strip is not only “occupied territory”, it is also a territory under a very suffocating siege by Israel.

This slow, deliberate and systematic strangulation has been in place for about eight consecutive years.

In justifying Israel’s massive destruction of Gaza, Western leaders keep defending Israel’s action as an act of self-defence, but they conveniently overlook the blockade of Gaza.

The people of Gaza lack food, medicine, spare parts, freedom of movement and other basic needs due to this ruthless blockade. Therefore, it is the response of the Palestinian resistance to this deadly blockade that is an act of self-defence. 

One should recall the 1967 crisis when Gamal Abdul Nasser, the president of Egypt, ordered, in May, the withdrawal of UN troops from Sharm El Sheikh and Eilat.

Israel launched a campaign, saying that Egypt was imposing a blockade on Israel. This blockade was the alleged legal ground on which Israel justified a whole war against three Arab countries, which ended with the occupation of Sinai, the West Bank and the Golan Heights.

In defending Israel’s war, Abba Eban, Israel’s minister of foreign affairs at the time, addressed the UN Security Council, saying: “Blockades have traditionally been regarded in the pre-Charter parlance, as acts of war. To blockade, after all, is to attempt strangulation.… To understand how the state of Israel felt, one has merely to look around this table and imagine, for example a foreign power forcibly closing New York or Montreal…. How could your governments react….  In law and in history peace and blockades have never coexisted. How could it be expected that the blockade of Eilat and a relaxation of tension in the Middle East could ever be brought into harmony?”

It could be objectively assumed that the Palestinian spokesman does not need to add much to Eban’s defence.

He could only add that the Palestinian defence is stronger than Israel’s since Israel was not “an occupied territory” while the Gaza Strip is “occupied” and the blockade is, legally, collective punishment that should be resisted, and legally so.

As a matter of law, the Palestinian resistance to Israel’s protracted occupation is an act of self-defence since the Palestinians are fighting to gain territorial integrity, faced with Israel’s non-stop colonisation that leaves no room for contiguous territory and self-determination.

Israel’s action in response to the blockade of Eilat could not be qualified as an act in self-defence as the blockade did not threaten the existence of Israel.

Israel propagates that Hamas missiles are threatening the civilian population of Israel and, therefore, it is compelled to respond in self-defence.

This is an artificial argument against the solid behaviour and policy of the Israeli government.

Comparing the power of the Palestinians’ missiles to that of the air and land force of Israel, it becomes clear that the plea is ludicrous.

The volume of damage, in human and material terms for the entire period the missiles were used does not equal a freckle of the human and material damage caused by just one sortie of an F16 plane. The current massacre is a case in point.

The hysterical argument that Israel spreads about missiles is just a smokescreen to justify perpetuating its occupation of the Palestinian territories and tightening its blockade of Gaza.

If Israel were indeed concerned about the safety of its population, it should behave in accordance with international law, which is legally binding on it.

The question that Israel is bound to answer is: Does it respect the life and human rights of the Palestinians in the occupied territories, including Gazans, to demand that Palestinian resisters respect the life and human rights of the Israeli civilians?

If Israel demands safety and protection for its civilians, it should make the plea with clean hands.

It is impossible for Israel to advance such plea. The recent onslaught of just one section of Gaza, say Al Shejaiya, put much blood on all of Israeli establishment hands, in particular its army, which always boast about its “clean weapon”.

So far, about 8,000 Gazans were slaughtered or injured, about 300 of them children.

Israel defends the massacres committed against civilians, saying that it was inevitable to cause such human suffering due to the alleged fact that Hamas fighters were using civilians as human shields and stored its weaponry, missiles and explosives in residential areas.

Yet, Israel has not produced, so far, any evidence to support its allegation.

It arrogantly expects the audience and public opinion to take such statements at face value.

The army spokesman appears to be shocked when some reporters question such statement and shows no respect for his audience when asked to produce evidence.

If Israel’s statement holds true, it should allow, at the very least, the Human Rights Council delegation, recently resolved to be established, to visit and investigate the situation in Gaza. The world public opinion is certainly eager to have another Goldstone Report, but without the subsequent apology. 

Israel and its supporters exhibited a high degree of hypocrisy. On the one hand, they plead self-defence in Israel’s campaign to annihilate the Gazans, on the other, they ignore the fact that self-defence is predicated on the principle of proportionality.

The responding state must use only “sufficient” force to repel the attack. Any excess force is in itself aggression.

It is well established that Israel does not believe, observe or consider the principle of “proportionality”. It, rather, adopts the “Dahiya doctrine” it developed in its war against Hizbollah in 2006.

Its army is being taught and trained to use this doctrine which advocates massive destruction of civilian areas and infrastructure. 

Thus, proportionality and Dahiya doctrine are, in the Israeli army teachings, mutually exclusive.

The writer is an attorney and legal consultant. He contributed this article to The Jordan Times.

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