On October 7 2023, greater than 1,000 Hamas militants stormed into southern Israel and went on a killing spree, murdering 1,200 males, girls and kids and abducting one other 250 individuals to take again to Gaza. It was the deadliest bloodbath of Jews for the reason that Holocaust.
That day, Israeli Prime Minister Benjamin Netanyahu informed the nation, “Israel is at war”. The Israel Defence Forces (IDF) instantly started a navy marketing campaign to safe the discharge of the hostages and defeat Hamas. Since that day, greater than 54,000 Palestinians have been killed, largely girls and kids.
Israel has maintained its response is justified underneath worldwide regulation, as each nation has “an inherent right to defend itself”, as Netanyahu said in early 2024.
That is primarily based on the best to self-defence in worldwide regulation, which is printed in Article 51 of the 1945 United Nations Constitution as follows:
Nothing within the current Constitution shall impair the inherent proper of particular person or collective self-defence if an armed assault happens in opposition to a Member of the United Nations[…]
Initially of the conflict, many countries agreed Israel had a proper to defend itself, however the way it did so mattered. This is able to guarantee its actions had been in keeping with worldwide humanitarian regulation.
Nevertheless, 20 months after the October 7 assaults, elementary authorized points have arisen round whether or not this self-defence justification nonetheless holds.
Can Israel train self-defence advert infinitum? Or is it now waging a conflict of aggression in opposition to Palestine?
Israeli tanks at a place close to the Gaza border in southern Israel in March 2025.
Ariel Schalit/AP
Self-defence within the regulation
Self-defence has an extended historical past in worldwide regulation.
The trendy ideas of self-defence had been outlined in diplomatic exchanges over an 1837 incident involving an American ship, The Caroline, after it was destroyed by British forces in Canada. Either side agreed that an train of self-defence would have required the British to display their conduct was not “unreasonable or excessive”.
The idea of self-defence was additionally extensively relied on by the Allies within the second world conflict in response to German and Japanese aggression.
Self-defence was initially framed within the regulation without any consideration to reply to a state-based assault. Nevertheless, this scope has broadened in current many years to embody assaults from non-state actors, resembling al-Qaeda following the September 11 2001 terror assaults.
Israel is a reputable, recognised state within the international neighborhood and a member of the United Nations. Its proper to self-defence will at all times stay intact when it faces assaults from its neighbours or non-state actors, resembling Hamas, Hezbollah or the Houthi rebels in Yemen.
Nevertheless, the best of self-defence shouldn’t be limitless. It’s constrained by the ideas of necessity and proportionality.
The need take a look at was met within the present conflict as a result of excessive violence of the Hamas assault on October 7 and the taking of hostages. These had been actions that might not be ignored and demanded a response, as a result of risk Israel continued to face.
The proportionality take a look at was additionally met, initially. Israel’s navy operation after the assault was strategic in nature, centered on the return of the hostages and the destruction of Hamas to get rid of the fast risk the group posed.
The authorized query now’s whether or not Israel remains to be legitimately exercising self-defence in response to the October 7 assaults.
It is a stay concern, particularly given feedback by Israeli Defence Minister Israel Katz on Could 30 that Hamas can be “annihilated” except a proposed ceasefire deal was accepted.
These feedback and Israel’s ongoing conduct all through the conflict increase the query of whether or not proportionality remains to be being met.
A take a look at of proportionality
The significance of proportionality in self-defence has been endorsed in recent times by the Worldwide Court docket of Justice.
Underneath worldwide regulation, proportionality stays related all through a battle, not simply within the preliminary response to an assault.
Whereas the regulation permits a conflict to proceed till an aggressor surrenders, it doesn’t legitimise the whole destruction of the territory the place an aggressor is preventing.
The precept of proportionality additionally gives protections for civilians. Navy actions are to be directed on the overseas forces who launched the assault, not civilians.
Whereas Israel has focused Hamas fighters in its assaults, together with those that orchestrated the October 7 assaults, these actions have brought about vital collateral deaths of Palestinian civilians.
Subsequently, taken general, the continued, 20-month navy assault in opposition to Hamas, with its excessive numbers of civilian casualties, credible studies of famine and devastation of Gazan cities and cities, suggests Israel’s train of self-defence has grow to be disproportionate.
The precept of proportionality can also be a part of worldwide humanitarian regulation. Nevertheless, Israel’s actions on this entrance are a separate authorized concern that has been the topic of investigation by the Worldwide Legal Court docket.
My purpose right here is to solely assess the authorized query of proportionality in self-defence and worldwide regulation.
Is rescuing hostages in self-defence?
Israel may individually argue it’s exercising reputable self-defence to rescue the remaining hostages held by Hamas.
Israeli hostage Eliya Cohen is instructed to point out a Hamas-issued certificates whereas being escorted by militants to be handed over to the Crimson Cross in central Gaza Strip in February 2025.
Abdel Kareem Hana/AP
Nevertheless, rescuing nationals as an train of self-defence is legally controversial. Israel set a precedent in 1976 when the navy rescued 103 Jewish hostages from Entebbe, Uganda, after their plane had been hijacked.
In present worldwide regulation, there are only a few different examples through which this interpretation of self-defence has been adopted – and no worldwide consensus on its use.
In Gaza, the dimensions, scale and period of Israel’s conflict goes far past a hostage rescue operation. Its purpose can also be to get rid of Hamas.
Given this, rescuing hostages as an act of self-defence is arguably not an appropriate justification for Israel’s ongoing navy operations.
An act of aggression?
If Israel can now not depend on self-defence to justify its Gaza navy marketing campaign, how would its actions be characterised underneath worldwide regulation?
Israel may declare it’s endeavor a safety operation as an occupying energy.
Whereas the Worldwide Court docket of Justice mentioned in an advisory opinion final yr that Israel was engaged in an unlawful occupation of Gaza, the courtroom expressly made clear it was not addressing the circumstances that had advanced since October 7.
Israel is certainly persevering with to behave as an occupying energy, regardless that it has not bodily reoccupied all of Gaza. That is irrelevant given the efficient management it workouts over the territory.
Nevertheless, the size of the IDF’s operations represent an armed battle and properly exceed the restricted navy operations to revive safety as an occupying energy.
Absent some other reputable foundation for Israel’s present conduct in Gaza, there’s a robust argument that what is happening is an act of aggression. The UN Constitution and the Rome Statute of the Worldwide Legal Court docket prohibit acts of aggression not in any other case justified underneath worldwide regulation.
These embrace invasions or assaults by the armed forces of a state, navy occupations, bombardments and blockades. All of this has occurred – and continues to happen – in Gaza.
The worldwide neighborhood has rightly condemned Russia’s invasion as an act of aggression in Ukraine. Will it now do the identical with Israel’s conduct in Gaza?
