Meaning of "Israel has right to defend itself"

Question

Every time the Israel-Palestine conflict flares up, the US reaffirms that "Israel has right to defend itself" (examples in 2003, 2009, 2023).

Literally, this seems trivial: Israel has right to defend itself like everybody, since self-defense is a universal principle.

But the US never officially states the right of Palestine to defend itself for instance, so apparently they are not considering self-defense as a universal principle, they give permission exclusively to Israel.

Additionally it is questionable whether self-defense even applies, because according to Francesca Albanese (UN special rapporteur on Palestine), "there is jurisprudence of the International Court of Justice that says that self-defense cannot apply in a context of military occupation." It's reasonable to assume that the US State Department is aware of this, so do they mean to express that the US support the use of force by Israel despite international law?

Since diplomatic language is usually very carefully crafted and this statement has been used for a long time, how should it be interpreted exactly?

Answer 1

The US is affirming that Israel can take actions when provoked

In most instances, the Israelis are responding to an attack, not provoking one. The cycle here tends to run as

1. Palestinian groups (Hamas, Hezbollah, Islamic Jihad, etc) do something to kill Israelis
2. Israel responds with targeted military action
3. Multiple groups and governments condemn Israel for their response

Let's take your 2003 example

1. Islamic Jihad bombs a restaurant in Haifa, killing 21 and injuring 60
2. Israel responds by bombing the alleged headquarters near Damascus, Syria
3. The UN condemned Israel's response

   Calling Israel’s reprisals for the attack in Haifa “repugnant”, several speakers from neighbouring Arab countries suggested that the air strike, in the context of an already shaky peace, could return the region to war and imperil international peace and security. Some said the armed reprisal was disproportionate and had proceeded from a political desire to destroy the peace process, illegally expand the conflict zone, and destabilize the entire region.

Most of the critics who tend to condemn Israel tends to downplay or even ignore the inciting incident. The US position taken by this statement is designed to run counter to that.

Is Israel's response legal?

As to if self-defense applies, the following quote was provided

there is jurisprudence of the International Court of Justice that says that self-defense cannot apply in a context of military occupation.

The problem with this is that Gaza is not occupied by the Israeli military as admitted by Hamas

In response to a statement by Hamas Politburo Chief Khaled Mashaal that Hamas will hold mass demonstrations against Israel inside Gaza to parallel those organized by the Fatah-controlled Palestinian Authority in the West Bank, Hamas Foreign Minister Mahmoud al-Zahar declared such a protest to be irrelevant. Al-Zahar stated that while the West Bank is "still under occupation" and that all forms of resistance, including armed resistance, should be used in that territory, "popular resistance is inappropriate for the Gaza Strip."

"Against whom could we demonstrate in the Gaza Strip?" al-Zahar asked. "When Gaza was occupied, that model was applicable."

The international law of occupation requires that a hostile army have "effective control" over a territory in an area where its authority can be exercised, and to the exclusion of the territory's established government. As foreign minister speaking on behalf of the Hamas government, al-Zahar is giving public credence to what has been a fact since September 2005 — that Israel is no longer in Gaza and that the Israeli government does not displace Hamas' authority. The assertion that Gaza is no longer occupied is strongly supported by international law derived from the Geneva Conventions and legal precedent. For Hamas to state otherwise would undermine its own power and would be a profound display of the weakness of its government.

Answer 2

As you yourself note, the meaning is quite trivial: "Israel has right to defend itself like everybody [sic]". Indeed, the fact that the meaning is so trivial is an important part of why this phrase is so popular with US government spokespeople.

The vital thing to understand here is that "Israel has the right to defend itself" is not intended to be some deep political insight or bold manifesto. Rather, the purpose of this statement it to frame the whole issue in simple, uncontroversial, terms. This is a very common rhetorical technique, which you will notice a lot if you look for it. Other (fictional) examples might be:

• Interviewer asks, "Mr Smith, should ordinary citizens be allowed to own heavy machine guns?" to which Mr Smith replies, "I believe that everyone in this country should be able to feel safe in their own home."
• Interviewer asks, "Mr Jones, is your plan to give everyone free food really affordable?" to which Mr Jones answers, "Under our government, never again will our children die from malnutrition."

These are particularly obvious instances of the technique, but I think they illustrate its essentials. The interviewee attempts to frame a complex issue in simple terms to which no reasonable person is likely to object. Not many people are going to say "Actually, I don't think people should feel safe in their homes," or "I think it's a good thing that children starve to death". The framing, if accepted uncritically, protects the position from direct attack.

This method can be quite effective because:

• As noted above, no reasonable person would disagree with the speaker's position, as they themself have framed it, so anyone who does disagree (no matter what the basis of their disagreement) can be portrayed as unreasonable.
• By focusing on a single, uncontroversial, point the speaker alienates as few people as possible.
• No interviewer has an unlimited amount of time, and many have very little time allocated, so the interviewee can usually bluster with meaningless filler for long enough to prevent their framing from being seriously challenged.
• The reframing is quite often used as a soundbite, which in many cases is the only part of the interview that people hear.
• The simplicity of the method means that even people who are poorly informed of the situation, or just interview badly, can easily employ it and give a reasonably solid response to pretty much any question.

You'll notice that I haven't really discussed Israel, Palestine, Hamas, the USA et al. much at all in my answer. That's because I don't think the particulars of the situation are all that relevant to your actual question. The US government has decided to adopt a certain position vis-à-vis Israel, for reasons beyond the scope of this answer. What you have really asked about, whether you realised it or not, is a rhetorical technique used to defend this position, not the position per se.

Answer 3

It is as trivial as it seems: It means Israel as a country has the right to defend itself against attacks on its borders & citizens.

On 7.10., Israel was brutally attacked. Hamas - the terrorist group currently in control of Gaza - crossed Israels border to murder, torture, rape and kidnap Israeli civilians.

---

Francesca Albanese is rather biased here, and the idea that the core land of Israel is under military occupation is absurd & Israel has fully withdrawn from Gaza in 2005 (which has been in control of Hamas since 2007).

The idea that a "proportional" response would have to limit itself to the territory of the attacked state is also not correct.

Palestine also has that right of self defense. If Israel would start a war of aggression, they could defend themselves. Just as Israel, they have to abide by international law. That means among other not specifically targeting civilians (as Hamas does) & not hiding military operations behind civilian structures (as Hamas does).

Answer 4

One of the cagier political points here is that states have an accepted intrinsic right to defend their borders, but peoples have no intrinsic right to self-defense. When someone says that Israel has the right to self-defense, what they literally mean is that the state of Israel has an unlimited right to take action against attacks within its territory, just as any other state has. The Palestinians do not have an internationally recognized state, therefore they have no legitimized body that can claim the right to self-defense, therefore pretty much any state could bomb the hell out of the Palestinians with little more than a cranky complaint about human rights from the UN, so long as the bombing doesn't infringe on the borders of another state. That's more-or-less the same position the Jewish people were in before the creation of the state of Israel (and one of the major justification that Zionists have historically used to defend the creation of the state).

Of course, if there were international recognition of the rights of peoples to exists (backed up by UN interventions) then the situations we see now with the Palestinians (and Kurds, Uyghurs, etc) would not exist. But most states see recignition of peoples as a threat to their own sovereignty, so that's unlikely to happen.

Answer 5

This is hardly specific to Israel.

When Russia invaded Ukraine, the retaliation was justified in the same manner. I don't think US politicians felt the need to say this explicitly, because there were few Americans trying to defend Russia's action. But there are many Americans who are tring to paint Israel as the aggressor, for a variety of reasons (e.g. Israel is bigger and stronger than Hamas, and many tend to side with underdogs), so it's necessary to respond on Israel's behalf.

In each case, the difference is "who started it" -- which side made an unprovoked attack. Preemptive strikes are practically never justified, so the initial actions of both Russia and Hamas are condemned. But since nations have a right to defend themselves, retaliation is allowed by international law as a defensive action.

There are limits to the kind of retaliation that is acceptable, e.g. targeting innocent civilians is generally not allowed (but civilian casualties as collateral damage may still result). But the simple statement "Israel has a right to defend itself" is not intended to provide that level of nuance. It simply justifies the military response in general.

Answer 6

The ICJ decision mentioned by Albanese was taken in the (2004) case of the West Bank wall. I think Albanese overinterprets that ICJ decision as applying to the present circumstances in Gaza. Here's what it said (court summary):

Self-defence -- Article 51 of the Charter -- Attacks against Israel not imputable to a foreign State -- Threat invoked to justify the construction of the wall originating within a territory over which Israel exercises control -- Article 51 not relevant in the present case.

Furthermore, even if you do consider Gaza as occupied territory still (despite the Israeli ground troops withdrawal in 2005), then Israel has the right to conduct counter-terrorism or counter-insurgency operations there. As e.g. the US did in Iraq after their invasion, before formally turning over the gov't to Iraqis. Such operation are not prohibited by international law either, and in the practical dimensions they were a quasi-war too with air-strikes etc. The UN charter generally chalks off such matters as "internal affairs" under article 2(7).

If you want the almost funny version of this, the Russian ambassador took a similar position to Albanese

“The only thing [the West] can muster is continued pronouncements about Israel’s supposed right to self-defense. Although, as an occupying power, it does not have that power,” Nebenzya said.

He cited a 2004 advisory opinion by the Hague-based International Court of Justice (ICJ), which states that Israel cannot invoke the UN Charter’s article on the right to self-defense when acting against threats from occupied territory.

But then he immediately added

“We don’t deny Israel’s right to fight terror, but fight terrorists and not civilians.”

So one may apparently fight terrorists anywhere, incl. occupied territories (he didn't say Israel may not fight them there), but just not call it self-defense. (I guess Israel could call it a special anti-terrorist operation, to please the Russians.)

Also recall that after Bataclan, France invoked article 42(7) [common defense] of TEU, claiming it had been attacked by the IS. The legal international status of the latter has been pretty unclear--a self-declared state that nobody recognized, but which occupied substantial territory and against which a lot of countries fought against militarily. (And the analogy with Bataclan is quite appropriate.) That also didn't stop France from treating the Bataclan attackers as pure terrorists.

Essentially, "self-defense" has a broader vernacular meaning than article 51 of the UN charter as interpreted by the ICJ. You can self-defend [in the vernacular sense] against terrorists or insurgents or separatists in your own country (or occupied territories) even if that is not what the ICJ construes to come under article 51. So, [international] lawyers can quibble about the exact word to apply to Israel's armed response, but that makes little practical difference as to whether the response is permissible.

Perhaps instructive here is the French statement from 2019:

In accordance with ICJ case law, France does not recognize the extension of the right to self-defense to acts perpetrated by non-state actors whose actions are not attributable, directly or indirectly, to a State.

France has, in exceptional cases, invoked self-defense against an armed attack perpetrated by an actor having the characteristics of a “quasi-State,” as with its intervention in Syria against the terrorist group Daesh (ISIS/ISIL). However, this exceptional case cannot constitute the definitive expression of recognition of the extension of the concept of self-defense to acts perpetrated by non-state actors acting without the direct or indirect support of a State.

Is Hamas-in-Gaza a quasi-State these days? Probably. Anyhow, the US takes an even more expansive view on the right to self-defense against non-State actors. From the latter's viewpoint, it's probably enough to view Hamas as an armed group that attacked Israel, and the Palestinian Authority being "unable or unwilling" to control Hamas. So, there's little surprise the US doesn't make such extensively qualified statements (like France did there.)

FWTW, there is a 2nd/pending ICJ case wrt OPT. The UNGA request is broadly worded. We'll see if the ICJ treats Gaza separately/differently. But events on the ground might well overtake any court opinions.

Answer 7

But the US never officially states the right of Palestine to defend itself

The answer to this question should also be a question:

When in history have the Palestinian people, tried to defend themselves?

The Palestinian people have no need to fight, since the US as well as all other western countries are ready to recognize a Palestinian state in the minute they manage to develop a government which is willing to recognize the Jewish state, denounce and counter terrorism effectively.

The Palestinian Authority has land, arms (provided by the US) and money (also provided by the US). Hamas has even sovereign land. Both parties, although through different tactics, are focused on annihilating the Jewish state rather than securing their own.

So if the Palestinians give up their intentions of annihilating Israel and its citizens - which is not self defense, they do not need to fight.

Late Israeli PM Golda Meir said: "If the Arabs put down their arms, there would be no war. If Israel puts down its arms, there would be no Israel".

How about Hamas joining the Abraham Accords?