Francesca Albanese is the UN’s special rapporteur on human rights in the occupied Palestinian territories (Gaza and the West Bank). She is a fierce critic of Israel’s actions and is banned from Israel because of comments about “Israeli oppression”, external made after 7 October.
Albanese told us that Israel “has completely capsized the current use of principles of distinction, principle of military necessity, precautions, and proportionality in international law”.
On self-defence, she points towards the International Court of Justice’s (ICJ) advisory opinion in 2004, that Israel could not invoke self-defence against a population it maintains under occupation.
Israel rejects this argument. It claims it was not occupying Gaza before 7 October because it withdrew its troops and settlers in 2005.
However, the UN still regards Gaza as occupied territory because Israel retained control of Gaza’s airspace, shoreline and most of its land border. An ICJ advisory opinion last year found that Israel’s occupation of Gaza did not end in 2005, and that Israel’s occupation of Palestinian territory is unlawful.
Gaza’s status before 7 October is relevant to whether the right to self-defence applies, according to Prof Ralph Wilde of University College London. Last year, he represented the states of the Arab League at the International Court of Justice in proceedings relating to Israel and Palestinian territories.
Prof Wilde told us: “Israel’s use of force after 7 October was not a new use of force. It was a continuation of that pre-existing use of force, amplifying it to an extreme level. It was, therefore, a continuation of an illegal use of force.”
Israel rejects such an argument.
There is a second reason why some believe the right to self-defence doesn’t apply to 7 October. Francesca Albanese argues that this right only applies if an attack comes from another state.
Some of the international law experts we spoke to disagree.
Lord Sumption told us such a position is “barely arguable”.
Prof Crawford, at the University of Sydney Law School, told us that “since the 9/11 attacks, many states have been prepared to accept that the right to self-defence under international law extends to uses of force against the state by non-state actors”. In other words, it does apply to Hamas and 7 October.
This debate is relevant to whether Israel’s overall response can be considered a proportionate act of self-defence.
Though Gerry Simpson, Professor of Public International Law at the London School of Economics (LSE), adds: “Even if Israel has a right to self-defence, the exercise of it has been disproportionate.”
Prof Kasher, of Tel Aviv University, argues the right to self-defence continues to apply so long as Hamas poses a threat to Israel and its population. “Self-defence is well justified as long as the goal is defence,” he says.
Whether it is the goal, though, is contested.