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Israel has been waging a full-scale war from land, air and sea against Hamas in Gaza for the last 21 months killing more than 57,000 Palestinians and injuring hundreds of thousands. Its armed incursions in the West Bank have also taken a toll of several thousands in that strip of land occupied by Israel. In Gaza 90 per cent of habitations have been destroyed by daily bombings that have seen almost all the educational institutions and hospitals reduced to rubbles. Most of those killed and injured are women and children. According to independent sources, number of people buried under the rubbles runs into hundreds of thousands but remain unaccounted for because the dead bodies have not been recovered. Israel's war in Gaza continues unabated even though Hamas guerrilla activities have ground to a halt, now reduced to keeping the few scores of hostages underground. Their leadership has already been decapitated and all that remains are a few hundred die-hard freedom fighters ' soldiering on' to coax a few terms from the Israelis in exchange of hostages to protect the interest of Palestinians in Gaza. But buoyed up by unstinted support from Donald Trump, Israel's prime minister Netanyahu declared during his latest visit to Washington that the war in Gaza will come to an end only when Hamas is annihilated. What he is actually meaning is that the closure to Israel's full scale war will come after the whole of Gaza is under Israel's military occupation and the people of that strip are starved and weakened enough for deportation in some other country. He waxed magnanimous, while speaking to the press after his talks with president Trump that Palestinians willing to better places will be allowed to leave. The intent of ethnic cleansing could not have been expressed more vicariously, yet cynically. Meanwhile, his defence minister has posted in social media a plan to herd 600,000 Gazans near Rafah in the south in a 'humanitarian zone', an euphemism for concentration camp. One cannot but marvel at the bizarre sense of humour peddled by Israel's policy makers. Even as the Israeli prime minister sat for official lunch in the quiet of the White House, scores were being killed in Gaza as the hungry crowded around a few sites used by American-Israeli backed Gaza Humanitarian Foundation (GHF) for distribution of food. This mayhem has been going on every single day since the GHF took up the eye washing exercise of aid distribution. Aid agencies within and outside the UN have labelled these distribution sites as 'killing fields' and 'death traps'. During the lunch president Trump exuded enthusiasm that countries around Israel were showing interest to the idea of relocating Palestinians out of Gaza. Ever the avaricious real estate man, Trump has not given up his dream of a Mediterranean Riviera along the coast of Gaza. He may have offered a few plots to his Arab acolytes as bait in addition to security guarantee. To cap America's blind support to Israel, the secretary of state has now declared that Francesca Albanese, the UN Rapporteur on Gaza, is under sanction for her biased report on Israel's action in Gaza terming it as genocide and naming a number of American tech giants as Israel's accomplice.
The above is an update on the 'holocaust of twenty- first century', perpetrated, ironically, by none other than the survivors of Hitler's holocaust and the saviour of the inmates of Nazi concentration camps, America. The reason why the vignettes of death, destruction and the diabolical plan for the near future have been recapitulated is to provide a backdrop for examining the legal basis of Israel's war in Gaza.
Soon after the armed incursion into Israel by dozens of Hamas fighters and killing of Israel Defence Force members and civilians and taking hostages Israeli prime minister Benjamin Netanyahu declared that his country had been attacked by Hamas and Israel was going to war exercising the right to self-defence to annihilate the terrorist group. Soon after the October 7 attack, leaders from America and Europe made a beeline to Tel Aviv, reassuring that they had the back of Israel and confirming that Israel had the right to self-defence. After making preparations the Israeli Defence Force (IDF) launched a full-scale war attacking Gaza from all sides, land, air and sea. It gave the impression as if Gaza was armed to the teeth and had a formidable standing army and not a ragbag group of guerrillas toting rifles and lunching rockets that were no more than child's playthings. The then defence minister threatened to cut off power, water and medicine to teach the 'animals' in Gaza a lesson.
What was the legal basis of Israel's war in Gaza? Did its 'right to self- defence', repeated like a mantra by its allies, empower it to launch the war in Gaza? According to Article 51 of the UN Charter a member country has the right to self-defence and it reads: 'Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN until the Security Council has taken measures to maintain international peace and security.' The key points of the UN Charter's Article are: (a) Inherent Right: Self-defence is considered an inherent right, meaning it exists naturally and does not need to be granted by the UN; (b) Triggered by armed attack: A country can defend itself only if it is attacked or in the event of an imminent threat of attack based on evidence for the same; (c) Individual or collective defence: A state can act alone or with allies in collective self-defence; (d) Must report to UN Security Council: Any self-defence action must be reported to UNSC.
Beyond the UN Charter, the right to self-defence is recognised in customary international law developed through state practice and legal procedure.
Both the UN Charter and the customary international law assume that the ' right to self-defence' becomes operative when a country is attacked or about to be attacked by another country. But this assumption does not cover cases where a country is attacked by non-state actors from another country. Because of this, there is no consensus on whether a country has the right to attack another country from where non-state actors ( freedom fighters, terrorists ) have travelled to attack it. The legal quandary becomes further complicated if the territory from where the attack has been launched against a country belongs to it or is under its occupation. Gaza presents this legal puzzle. It is not an independent country and has been under Israeli occupation since 1967. Though IDF and Israeli settlers left Gaza in 2005, the strip did not enjoy any degree of sovereignty and has remained under Israeli blockade on land, sea and air. So even though Hamas launched the armed attack on October 7 from Gaza, the strip of land constituting Gaza cannot be targeted for attack by IDF as being liable for the incursion. On the other hand, under the Geneva Convention, Israel as the official occupying power, cannot use right of self-defence to justify use of military force against the people under its occupation. So, legally speaking, Israel could not declare war against Gaza as it did following October 7, 2023. Both Israel and its allies who asserted Israel's right to self-defence abused both the Article 51 of UN Charter and the customary international law on the same subject. The illegal war launched by Israel in Gaza has now been rendered into a war crime because of acts of genocide. The UN Rapporteur Francesca Albanese and almost all human rights organisations are now at one in their assessment of this aspect of the war. A case is pending before the International Court of Justice (IJC) for verdict of genocide against Israel. Ireland, Spain and Norway have united on this issue. But the majority of EU countries are still having cold feet in calling Israel to account.
After launching the war Netanyahu boasted before visiting Western leaders that Israel's case against Hamas had moral clarity. If the war launched in the name of self-defence is not sustainable legally how can it be moral? Such absurd protestations and their espousal by big powers are upending the time-tested moral compass and brazenly seeking to impose a new moral code based on power and real politic. The war in Gaza and its denouement is destined to become a test case of international morality.
If Israel and its allies were wrong in justifying the war in Gaza under the principle of 'right to self-defence', they have been equally wrong in invoking this principle to justify Israel's pre-emptive attack against Iran. As Iran was not at all on war mode, and its initial setbacks including loss of generals and nuclear scientists attest to that there was no legal basis for the pre-emptive attack as defined in Article 51 of UN Charter. These two instances unmistakably show that Israel is a rogue country that brooks no law in using brute force in the pursuit of its own interests. It has savaged all human values and decencies by its acts of secret assassinations and unsavoury espionage. Unfortunately, it literally gets away with murder because it has got big powers at its back. It is no coincidence that its allies are also its major suppliers of arms.