In the most recent turn of events in the Israeli–Palestinian conflict, the international community has once again been taken aback by the shocking attacks of the Israeli military on the demonstrators in the Great March of Return, a non-violent protest by Palestinians at the Gaza border fence which began on March 30, 2018. The march signifies the desire of thePalestinians to return to their ancestral land. Israel backs its action on the grounds of self-defence as elucidated under Article 51 of the UN Charter. This has sparked widespread debate among the legal community on the legitimacy of claims of self-defence by Israel. This article attempts to comment upon the nature of conflict and whether the contentious concept of self-defence applies in the present case.
As a first step, we need to determine the nature of the conflict. The conflict in the present case can be classified as anon-international armed conflict. A non-international armed conflict occurs when there is a protracted armed conflict between military forces of the government and an armed group. The intensity of the violence and the organisation of the parties are typical characteristics of a non-international armed conflict. The conflict between the armed militant group Hamas and Israeli forces is evident from the various instances of aerial bombarding, air strikes and rocket fire over the years, so the criterion of a protracted armed conflict is fulfilled. The intensity of conflict is determined by the level and duration of violence. The involvement of third parties and outside agencies and the strong criticism by the international community and human rights organisations further illustrate the intensity of the conflict. The parties must also have a minimum level of organisation. Hamas is a Palestinian Islamist political organisation which has waged war on Israel since its foundation in 1987. Hence, there is sufficient organisation of the parties of the conflict.
This study on self-defence limits itself to the recent killing of Palestinians by the Israeli military forces using live fire during the March of Return. The claim of self–defence by Israel will be analysed on 3 main grounds:
An Armed Attack
In order to exercise self-defence under Article 51 of the UN charter, an armed attack by a state is a prerequisite. However, the view that self-defence can only be invoked against an armed attack by a state has become ever more criticised. As a response to the attacks of September 11, 2001, theUS used military force against Al-Qaeda (a non-state actor) and claimed that the force was exercised in self-defence. The state practice since 2001 and theUnited National Security Council resolutions 1368 and 1373 acknowledging and recognising the attack by the US on Al–Qaeda as a form of self–defence makes the acceptance of the view that self-defence is available against non-state actors evident. Furthermore, the opinion of Judge Buergenthal and Kooijmans in the Wall case and the Separate opinion of Judge Simma in the case of Congov Uganda emphasise the view that self-defence can be exercised against non-state actors .
In the present case, there was no armed attack by the demonstrators as it was a peaceful assembly in the nature of a protest. The very claim of self-defence fails in the first stage as there was no armed attack by the civilians who were peacefully protesting.
However, if we analyse the claims of Israeli officials and soldiers that Hamas was involved in the attacks and that there were attacks on the Israeli soldiers, the first criterion may be fulfilled since there has been an armed attack by a non-state actor. The notion of non-state actors includes organisations and institutions on a global and regional level as well as terrorist groups.Hamas is a Palestinian Islamist political organisation and militant group. Moreover, Hamas has been declared a terrorist organisation by the European Court of Justice. Hence, Hamas qualifies as a non-state actor. With regards to an armed attack having taken place by Hamas, Israel claims that Hamas has encouraged and supported the protests and has deliberately placed civilians in harm’s way. There is no de minimis threshold for the qualification of an armed attack. Hence, if we consider Israel’s stance, the first criterion is fulfilled.
Immediacy and Necessity
The law relating to self-defence requires that the requirements of immediacy and necessity are fulfilled. The criterion of necessity assumes that the need for self-defence is instant, overwhelming and leaves no other alternative than the exercise of force. In order for the course adopted to be categorised as necessary, there must be no other peaceful means which can be resorted to or all such means must have been exhausted. The aspect of imminence is also an essential element of necessity which must be proven by the state claiming to exercise self-defence.
In the present case, the organisers state that the protest was meant to be peaceful and non–violent in nature. Moreover, there was no imminent threat posed by the civilians who were peacefully demonstrating. Furthermore, other peaceful means in the form of peace agreements could have been resorted to by the Israeli officials in order to deal with the situation. The use of live fire which led to the killing of innocent civilians who posed no threat is clearly a violation of Article 3 of the Fourth Geneva Convention. Hence, the conditions of necessity and immediacy are not fulfilled.
Proportionate Use of Force
The third requirement for the exercise of lawful self-defence is that the use of force should be proportionate. The meaning of the term proportionality in the context of the jus ad bellum refers to striking a balance between the attack and the wrong which provoked the attack.An alternative approach to proportionality is the amount of force which can be used to do away with the overall threat, but the International Court of Justice has in various judgments favoured the former approach.
In the present case, the Israeli military forces started live fire against civilians who were peacefully protesting without posing any imminent threat. The Israeli forces used high velocity military weapons and killed around 114 people including 14 children and injured more than 3000 people using live ammunition. Human Rights Watch also stated that Israel has repeatedly used lethal force against civilians who had in no way posed a threat to Israel. The force used by Israel is clearly excessive and disproportionate in nature as it exceeds the magnitude of the actual attack by using an unreasonably high amount of force without any reasonable basis.
After analysing the law relating to self-defence under international law and its application in the Israeli-Palestinian conflict, it can be concluded that the claim of self–defence by Israel fails on multiple grounds.The force used by Israel does not qualify as self-defence under international law and is hence clearly a violation of Article 2(4)of the UN charter.