Israel’s justification for its atrocities in Gaza hinges on the claim of self-defense under Article 51 of the UN Charter. But is this position legally sound according to international law? The Charter of the United Nations grants the right of self-defense to any state attacked, but this right is not available to an occupying state.
The occupying state itself commits aggression and violates the UN Charter. The Palestinian territories have endured Israeli occupation for more than half a century. According to international law, the Palestinians are entitled to self-defense, not Israel. In 1967, Israel’s occupation of Gaza and the West Bank was deemed illegal under international law.
As long as this occupation persists, it is viewed as ongoing aggression, and the affected parties have the right to defend themselves. This right pertains to the people of Gaza and the West Bank, whose land is occupied by Israel, rather than to the Israelis who are conducting the occupation.
Gaza is considered an occupied territory, and as such, the power and authority of the Palestinian government is significantly curtailed. According to Article 43 of the Hague Regulations, the occupying power is responsible for the health and safety of the residents in the occupied territories. Any military action by Israel resulting in the deaths of more than 40,000 civilians could be deemed a war crime rather than an act of self-defense.
The United States and Israel maintain that since 2005, Gaza is no longer an occupied territory, therefore Israel cannot be subject to international law as an occupying power. This position is invalid and has not been accepted by the Red Cross, the General Assembly, the European Union, the African Union, the International Criminal Court, Amnesty International, and the International Court of Justice.
Regardless of the terminology used, neither Gaza nor the West Bank is free and autonomous. The UN working agency refers to Gaza as Occupied Palestine, a term adopted after the Israeli withdrawal. According to the Red Cross, despite the withdrawal from Gaza, Israel retains effective control over the area, with permission required for entry and exit.
The Office of the United Nations High Commissioner for Human Rights has also supported this view. In 2014, the International Criminal Court declared Gaza and the West Bank as Israeli-occupied territories. When these areas are occupied by Israel, they lack the independence enjoyed by other countries. Communication with the outside world is subject to Israel’s control, and they are under siege on their land and sea borders. Their jurisdiction is no more than that of a municipal corporation. I
srael prohibits them from having a regular army, and despite granting them limited partial powers, it cannot claim that they are not occupied. Israel’s status in these areas is that of an occupier.
According to international law, particularly Article 42 of the Fourth Hague Convention, the issue of Gaza’s occupation is governed by the ability to enforce authority in the area. Despite the absence of Israeli troops in Gaza, Israel maintained effective control over the region before the recent war by restricting land, air, and sea routes. This was indicated by the Geneva Academy of International Humanitarian Law and Human Rights.
The recent genocide has significantly eviscerated Gaza. According to a report by Bloomberg, the Israeli air strikes have resulted in an estimated 42 million tons of debris scattered across the Strip, This staggering amount of rubble is equivalent to filling a line of dump trucks stretching from New York to Singapore. The removal process is anticipated to be prolonged, potentially spanning years, and may incur costs as substantial as $700 million. Israel is attempting to avoid UN requirements imposed on it as an occupying force by denying its status as an occupying force.
Additionally, it aims to strip Palestinians of their right to armed struggle. Israel and its allies’ claim is not recognized by any international organization, including the United Nations. Israel is considered an occupying force, and as such, it is seen as the perpetrator of aggression without any right to self-defense.
A brief examination of Israeli control over Gaza and the West Bank leads to the question of what constitutes aggression under international law. According to Article 3 of the General Assembly’s Resolution 3314 Definition of Aggression, aggression includes attacking another state, occupying it (even temporarily), annexing a part of another country, bombing another country, using weapons on its territory, and blockading its ports.
Article 5 states that aggression is a crime against international peace and that it is the responsibility of the international community to address it. The occupation of any territory through aggression, or any gains obtained from this occupied territory, shall not be recognized as legitimate.
In a landmark ruling, the International Court of Justice has explicitly stated that Israel does not have the legal right to selfdefense. This ruling carries significant implications, According to the judgment, Palestinians, who have endured decades of Israeli aggression, are recognized as having the legitimate right to self-defense.
