“A state cannot invoke the right of self-defence to defend against an attack which originates inside a territory it occupies..”
• Self-defence and the Right to Resist in Palestine (Sinclair/Cohn)
[..] The UN charter requires all states to settle their international disputes peacefully so as not to endanger international peace and security. That doesn’t just apply to states, but also to the settlement of any international disputes. The charter says no state can use military force against the territorial integrity or political independence of another state “or in any other manner inconsistent with the Purposes of the UN.” Although Israel denies that Palestine is a state, the Israeli Supreme Court in the Targeted Killings case recognised the dispute between Israel and the Palestinians to be of an international character. Israel cannot use the Palestinians’ lack of statehood to justify its use of military force.
The only two exceptions to the prohibition on the use of force are when a state acts in self-defence or the [UN] security council authorises force. A state may use military force in self-defence under Article 51 of the charter “if an armed attack occurs” against a state. The use of armed force for reprisal or retaliation is prohibited. For an armed attack to give rise to the right of self-defence, it must be directed from outside the territory under the control of the defending state. A state cannot invoke the right of self-defence to defend against an attack which originates inside a territory it occupies. Because Israel has continued to occupy Gaza, it has relinquished its right to claim self-defence in response to the Palestinian attacks.
In its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice (ICJ) established the non-applicability of “self-defence” under Article 51 in the situation between Israel and the Occupied Palestinian Territory. Israel remains an occupying power in Gaza despite its unilateral removal of settlements. After the 2005 election of Hamas, Israel imposed a blockade against Gaza which is specifically listed as an act of aggression under UN general assembly resolution 3314. An occupying force has a duty to protect the people it occupies; it cannot claim self-defence against the occupied.
Actions taken by Palestinians to resist the blockade are not “acts of aggression” so they do not allow Israel to claim it is acting in self-defence. Aside from the illegality of targeting and killing civilians, what does international law say about Palestinians resisting the occupation, including with armed force? Whether the use of force in the first instance is lawful is a separate question from how that force is carried out. For targeting and killing civilians and taking hostages, Hamas leaders can be charged with war crimes. The Palestinians, however, have the right to self-determination and the right to resist Israel’s occupation of their territory, including through armed struggle.
