Israel and the western media has parroted this line since day 1, but the question is – is it true? Why hasn’t this been questioned? Israel has invoked Article 51 of the UN charter, the outcome of which is this:
Whether Israel has an Article 51 right to self-defence is a complicated question that does not allow for binary answers. All possible answers turn on various underlying assumptions:
- If Palestine is not already a state, and there is no other option of extending the Article 2(4) prohibition on the use of force to Gaza, then Israel does not have a right to self-defence. This does not mean that Israel cannot use force in Gaza at all, but that the jus ad bellum would impose no constraints on it. I have no idea whether this would be the official view of the Israeli government. On the one hand, it is the most permissive in the ad bellum sense and aligns with Israel’s views on the statehood of Palestine, but, on the other hand, it would require Israel not to use the language of self-defence.
- If Palestine already is a state, or the prohibition on the use of force is somehow otherwise engaged, then Israel would have the right to self-defence if it were accepted that non-state actors such as Hamas are capable of committing armed attacks in the sense of Article 51 of the Charter, and that the operation on 7 October was one such attack. However, states and scholars remain divided on the core question of principle, although there has certainly been a growing trend of recognizing that non-state actors can commit armed attacks. Alternatively, Israel could even under a restrictivist view have the right to self-defence if the actions of Hamas were attributable to the state of Palestine, but any such attribution would be difficult.
- If the prohibition on the use of force was engaged, and Israel did not have the right to self-defence because none of the options in (2) was operable, then Israel could take no military action in Gaza whatsoever, no matter how limited, not even for the purpose of rescuing the hostages.
- If Israel did have the right to self-defence because one of the options in (2) was operable, its response would be limited by the necessity and proportionality criteria of customary international law. However, how precisely proportionality operates in these circumstances is highly contested, and Israel certainly has a plausible way of arguing that its actions remain proportionate, regardless of the number of Gazan civilians killed.