What does Israel’s “right to self-defense” actually mean?

Israel effectively ended the ceasefire in Gaza on Tuesday morning after launching major airstrikes that killed over 400 Palestinians and resuming a war that has devastated the enclave. Since October 2023, Israel has killed over 62,000 Palestinians, decimated Gaza’s health care infrastructure, and displaced some 90 percent of the population. It’s a staggering human toll that Israel and its allies have justified with one simple refrain: “Israel has a right to defend itself.” It’s a familiar line that’s been repeated for decades. George Bush, Barack Obama, and Donald Trump all said it during their time in the White House. Former President Joe Biden said it in the wake of the October 7 attack on Israel in 2023, when Hamas killed about 1,200 people and took at least 250 people hostage. Since then, American politicians — from governors to mayors to members of Congress — have all turned to that phrase to reiterate their support for Israel. --- Inside this story * Why Israel’s claim of self-defense relies on murky legal arguments * Israel’s self-defense argument, explained * How Israel can legally respond to an attack like October 7 * Why defining self-defense matters --- But it’s important to break down what this “right” actually means, because preventing this kind of catastrophe in Gaza from happening again requires an interrogation of the legal justifications that have led to this outcome. So here’s the problem with politicians so often invoking Israel’s “right to defend itself” when trying to justify the state’s lack of restraint or defend it against accusations of genocide: In the occupied territories, which include the West Bank and the Gaza Strip, Israel’s right to self-defense might not even exist — at least not from a legal standpoint. Under international law, any recognized sovereign state has the right to defend itself against an armed attack from another country. Ukraine, for example, has a widely recognized right to defend itself against Russia’s invasion. Israel has that same right — except what’s different about October 7 is that Israel was not invaded or attacked by another sovereign country. Hamas’s attacks, and other instances of armed rebellion by Palestinians, have come from territories that Israel controls. Because of that, some legal experts argue that Israel cannot reflexively invoke a right to self-defense, at least as understood in a legal context. This interpretation of international law isn’t a fringe legal viewpoint. Over the decades, it’s been repeated by practitioners and scholars and even reiterated in an advisory opinion at the International Court of Justice in 2004. Some argue that, morally, Israel had no choice but to act with force to deliver some form of accountability for October 7. But moral arguments only go so far: After all, what could morally justify killing tens of thousands of innocent men, women, and children? And morals, in any case, do not govern the world; laws do. International law does not, of course, require that Israel sit idly by after an event like October 7. Israel can respond with proportionate force — like using law enforcement to repel an attack and restore order. But launching a war and definitively claiming that it is an act of self-defense rests on shaky legal ground. On the surface, this might seem like a tedious semantic exercise. Whether Israel can claim self-defense doesn’t materially change how it might continue to conduct itself in Gaza and the West Bank, nor would it suddenly make all of Israel’s actions during this war legal. (Whatever legal right Israel might invoke to use force, it cannot be given carte blanche.) But a better understanding of what Israel’s right to defend itself actually means would help clarify whether Israel’s war was indeed an act of self-defense or an act of aggression. And if it’s the latter, then that ought to make Israel’s allies rethink the kind of blanket political support they often provide Israel during times like these. Israel’s claim of self-defense relies on murky legal arguments There are two main legal frameworks for considering the right to self-defense. First, the Charter of the United Nations, the founding document of the UN and a legally binding treaty for member states. Second, international humanitarian law, which establishes the rules of conduct around armed conflict. Though some form of international humanitarian law has existed for centuries, today’s version is rooted in the Geneva Conventions of 1949 as well as other binding treaties. Entities like the International Court of Justice (ICJ) and the International Criminal Court are responsible for adjudicating it. Israel’s right to defend itself is a reference to Article 51 of the Charter of the United Nations, which states that, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” While “armed attack” is not explicitly defined, the phrase has historically been interpreted to mean an attack from another state. That charter is what Israel and its allies have invoked since it was attacked on October 7 to defend its actions in Gaza. The problem, however, is that since 1967, Israel has been occupying Palestinian territories — the longest military occupation in modern history — and has been in routine violation of international humanitarian law. In fact, just last summer, the ICJ deemed the Israeli occupation to be illegal in its entirety. (Israeli Prime Minister Benjamin Netanyahu called the ruling a “decision of lies,” and falsely asserted that the legality of Israeli settlements “cannot be disputed.” Other Israeli politicians called the decision antisemitic.) “Every state that suffers an attack or a serious threat of an attack has the right to defend its territory and its citizens using force,” Francesca Albanese, the UN special rapporteur on human rights in the occupied Palestinian territories, told me in October. “But in the case of Israel, there was no right to self-defense on October 7 simply because Israel was not attacked by another state.” In other words, since the attack came from an armed group within a territory that Israel not only controls but is widely recognized as illegally occupying, it cannot claim the right to self-defense. Albanese caught flak for similar comments she made early on in the war, but there is legal precedent to back her point. In 2004, the ICJ issued an advisory opinion on the wall Israel was constructing around the West Bank, arguing that the barrier was illegal. (While advisory opinions are nonbinding, they are respected as authoritative interpretations of international law, and are often cited in legal proceedings.) The court argued that because the wall would defend against threats from an area that Israel already controls, Israel was not acting, as it had claimed, in self-defense. “Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defense,” the ICJ wrote. In the context of that advisory opinion, any action that’s taken to further solidify or perpetuate Israel’s military grip on Palestinians can be seen as an extension of the occupation, not an act of self-defense. In South Africa v. Israel — the case brought before the ICJ last year accusing Israel of committing genocide — South Africa’s legal team reiterated that line of reasoning. “What Israel is doing in Gaza, it is doing in territory under its own control,” South Africa’s lawyers said. “Its actions are enforcing its occupation. The law on self-defense under Article 51 of the United Nations Charter has no application.” Even though the attacks on Israel come from within territories that are under its control, the situation is not akin to a civil war. It is still an international conflict: Israel is illegally occupying foreign territory and must abide by international humanitarian law, not its own domestic laws or any rules governing civil wars. Ultimately, as the occupying power, Israel is responsible for winding down and eventually ending its occupation, not further entrenching it. “The State of Israel is under an obligation to bring an end to its unlawful presence in the Occupied Palestinian Territory as rapidly as possible,” the president of the ICJ wrote when delivering the court’s advisory opinion that determined the occupation is illegal. But over the decades, Israel has only dug in deeper, continuing to build illegal settlements on occupied territory, blockading Gaza, and imposing military rule on Palestinians that violates their human rights. That’s what makes Israel an aggressor under international law, both before and after October 7. And so long as Israel is an aggressor, then it cannot claim the right to self-defense. “By maintaining an occupation that deeply, irreversibly violates the right of self-determination of the Palestinian people, it constitutes a permanent and enduring form of aggression,” Albanese said. Israel’s argument, explained Some experts argue that Israel’s justification for the war does fit into an international legal framework. One argument is that October 7 amounts to an “armed attack” — what Article 51 of the UN Charter says would trigger a state’s right to self-defense. Prior to the attacks of September 11, 2001, the prevailing interpretation of the UN Charter was that only states can carry out “armed attacks.” In that sense, Hamas, which much of the international community considers a “non-state actor,” could not trigger Israel’s right to self-defense. The United States, however, challenged that view when it invoked its right to self-defense after 9/11 and launched the “war on terror,” which specifically targeted non-state actors. In a journal article published by the US Army War College, Eric A. Heinze, an international studies professor at the University of Oklahoma, makes the case for why Israel could invoke self-defense in the aftermath of October 7. One of his arguments includes the point that the scale of the attack on October 7, with the number of civilian casualties, would constitute an “armed attack” and make a military response justifiable. “In the case of the Israel-Hamas conflict, there seems to be little doubt that the October 7 attacks met and exceeded the levels of violence required to rise to the level of an ‘armed attack’ under Article 51,” Heinze wrote. But whether October 7 amounts to an “armed attack” or not is beside the point. “There’s no doubt that in terms of the definition of armed attack, per se, what took place on the seventh of October amounts to an armed attack,” Ardi Imseis, an international law professor at Queen’s University and former UN official, said in October. “The question is not that, though. The question is whether or not it qualifies as an armed attack that allows a state, subject to said attack, to invoke a right of self-defense under Article 51 of the UN Charter.” The answer to that question is a resounding no, Imseis says, because the ICJ — as the principal judicial arm of the United Nations — already determined, in its 2004 opinion on the wall, that the claim of self-defense does not apply within territory that is under Israeli control. In other words, the key distinction here is not the “armed attack” part, but the fact that Israel unlawfully occupies Gaza. That’s also what makes this situation fundamentally different from the US invoking a right to self-defense in response to actions by al-Qaeda after 9/11: al-Qaeda was not attacking its occupier. This leads to the second part of the rationale behind Israel’s argument: the common refrain that Gaza hasn’t been under occupation since Israel withdrew its settlements and military from the strip in 2005. Therefore, legal reasoning like the 2004 advisory opinion on the separation wall doesn’t apply, the argument goes, because Israel doesn’t control that territory. That characterization, however, is widely rejected by human rights groups and the international community; even the US State Department includes the Gaza Strip in its definition of the occupied Palestinian territories, alongside the West Bank and East Jerusalem. Most recently, in its advisory opinion that declared that the occupation is illegal, the ICJ reaffirmed that Gaza is, from a legal standpoint, under occupation. While the Israeli military no longer had a daily presence in the enclave after 2005, Israel still controlled Gaza’s borders, airspace, and territorial waters. As a result, Israel has largely been the one deciding which goods and basic necessities could flow in and out of Gaza. The kinds of goods Israel banned from entering Gaza through the years have included wedding dresses, diapers, baby bottles, paper, and pasta. Even Palestinian fishermen were only able to access very limited parts of the sea. Put another way, while Israel does have legal recourse against threats emanating from the Palestinian territories, Israel lost its right to invoke self-defense when it started its military occupation nearly 58 years ago. “The only way for Israel to ensure the security of its territory and its citizens,” Albanese said, “is to stop abusing another people, to stop occupying the Occupied Palestinian Territories.” The problem, however, is that the occupation has no end in sight. So how can Israel legally respond? After an attack like October 7, there are various legal avenues that Israel can pursue. But whatever actions it takes, Israel must abide by Occupation Law, a branch of international humanitarian law, which defines how to address attacks that come from the occupied territories. The basic answer to the question of how Israel is legally allowed to respond is through law enforcement. A proportional police crackdown on perpetrators of violence, for example, might be justified if it doesn’t violate people’s rights; an overwhelming show of military force is not. While there’s no objective measure for what would constitute a proportional response, international humanitarian law lays out some guidelines. It explicitly prohibits military force that would be “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” That means that Israel must limit the damage it inflicts solely to legitimate military objectives. As an occupying power, Israel could have used “necessary and proportionate force to repel the attack. But that’s where they have to stop,” Imseis said. For any use of force to be lawful under international law, “it must be necessary and proportionate in relation to the force being used against it,” he added. Israel might argue that it has been acting with proportionate force because it was not just stopping the attacks of October 7, but any potential future attacks by Hamas or other Palestinian armed groups. But this argument is complicated by Israel’s obligations as the occupying power. As Israel is charged with ensuring the welfare of the people it occupies, it cannot wage a war under the guise of stopping “future attacks.” That’s why Israel and its allies argue that this war is against a single entity — in this case, Hamas — rather than the Palestinians more broadly. It’s hard, though, for Israel to claim that its war on Gaza has been an act of self-defense, or a war against only Hamas — let alone a proportionate response to October 7. In just over a year, Israel has used mass starvation as a weapon of war, imposing famine conditions across the Gaza Strip. It has brought Gaza’s health care infrastructure to the brink of collapse and created conditions for the spread of preventable diseases. And it has killed more than 150 journalists. This kind of harsh collective punishment was even articulated by Israeli officials at the onset of the war. “What we know for certain, and this is beyond doubt, is that the measure, character, quality of the use of force used by Israel to respond to the seventh of October — even arguing that they had a right to self-defense under [Article] 51 — went well beyond anything reasonably proportionate or necessary to repel that attack,” Imseis said. All of this means that even if Israel could claim that it initiated the war out of self-defense, the actions of the war itself could not be considered legal. “Whatever the possible legal justifications for the use of force, all sides must always comply with the law of armed conflict and know that war crimes are never justified,” Clive Baldwin, a senior legal adviser for the legal and policy office of Human Rights Watch, said in October. “No matter what the other side has done, reprisals are not justified either.” There is also an inconvenient truth for Israel and its allies when they argue that the principles of self-defense ought to give Israel license to wage this kind of war in Gaza. The other side of that coin is that Palestinians, as an occupied people, have a right to resist under international law, which includes armed resistance — as various legal scholars have argued and as the UN General Assembly has articulated in a resolution. Of course, Palestinian militants do not have the right to commit war crimes, such as killing innocent civilians or taking hostages, when carrying out an attack. But it does mean that the rationale behind an armed attack, depending on intent and action, can be rooted in the law. Why defining self-defense matters There are two main reasons why it’s important to challenge the reflexive talking point used to justify use of force against Palestinians — that Israel has a “right to defend itself.” And it’s especially important now because, as the latest assault on Gaza has shown, a ceasefire is no guarantee that Israel will rein in its belligerence. The first is that Israel’s allies, particularly the United States, ought to have pushed the country to abide by the principles of international humanitarian law — not simply invoking the UN Charter and leaving it at that — and limited their support to include a proportional law enforcement response. The blank check that the Biden administration gave the Israeli government in the aftermath of October 7, under the guise of supporting self-defense, enabled Israel’s worst impulses — giving it ample resources to wage a horrific war that has resulted in one of the defining humanitarian catastrophes of the century. The second is that allowing Israel’s claim of self-defense to go unchecked essentially absolves it of its role as an aggressor by ignoring the fact that Israel is administering an unlawful, brutal military occupation — one that various leading human rights organizations have deemed an apartheid regime. “Under almost every possible scenario in which we analyze Israeli attacks on the Gaza Strip under international humanitarian law, Israel fails,” Ata Hindi, an international law scholar and professor at Tulane University Law School, said in October. “So they remove themselves from the law,” he added, by using “self-defense” as an umbrella term that justifies all of its actions. Accepting that Israel has been acting in self-defense rather than as an occupier expanding its military control means that Israel’s allies are willing to flout international law whenever it’s convenient to do so. And since last year, Israel has shown how dangerous that is, committing atrocities and human rights violations while ignoring injunctions imposed by the world’s highest court. That kind of hypocrisy — a selective approach to determining which laws ought to apply to Israel and which it should conveniently dismiss — is bound to have global consequences. It undermines the legitimacy of the international legal system, emboldening Israel and other states to continue violating laws with impunity. Russia, for example, has already pointed to the United States’ unequivocal support for Israel’s war as evidence of the West’s lack of respect for the rules-based order. So the next time a politician says Israel has a right to defend itself, ask yourself: Is this what self-defense actually looks like? Update, March 18, 10:35 am ET: This story, originally published March 14, has been updated to reflect Israel’s March 18 attacks on Gaza and end of the ceasefire.

Clarity in this chaotic news cycle

What does Israel’s “right to self-defense” actually mean?