Israel Can't Claim Right To Self Defence Under UN Charter Against Threat From A Territory Under Its Belligerent Occupation: UN Expert

During this address to the National Press Club of Australia, Albanese condemned the October 7 attack by Hamas which resulted in the deaths of over a thousand Israelis and foreign nationals, as well as Israel’s subsequent ‘unrelenting bombardment of Gaza’ over the last months, which has also claimed several thousand lives. To justify the resort to force, the Israeli government, under the premiership of Benjamin Netanyahu, has invoked Article 51 of the United Nations Charter. Albanese, however, argued that such a right did not exist under the covenant. While Israel has a “sacrosanct right and duty” to protect itself, its territory, and its citizens, Albanese explained, ‘self-defence’ was a term of art under international law that referred to an individual or collective right to wage a war. Article 51 guarantees to the members of the United Nations the right of ‘individual or collective self-defence’ in the face of an armed attack until the Security Council has taken “measures necessary to maintain international peace and security”. She said –

“Israel has claimed a non-existent right to self-defence under the UN Charter. In the common language, self-defence might be understood as the right to protect oneself, which Israel clearly has. Israel has the sacrosanct right and duty to protect itself, its territory, and its citizens – although it tends to confuse a lot its own territory with the territory that it is trying to annex under occupation, and this is illegal. However, Article 51 of the UN Charter that Israel has invoked is not just the right to protect itself. It is a legal term of art and means the right to wage a war, which Israel does not have. This is the consolidated jurisprudence of the supreme judicial organ of the United Nations. State practice might diverge – United States and Iraq – but the law remains the law, and this is what we should follow.”

The right of self-defence can be invoked only when a state is threatened by another state, and not a non-state actor, Albanese pointed out, before categorically adding that such a right could not be claimed against a threat emanating from a territory kept under ‘belligerent occupation’.

“Israel has not claimed that it has been threatened by another state; it has been threatened by an armed group, qualify it the way you want, but it is an armed group within the occupied territory. Frankly, even saying the war between Gaza and Israel is wrong because Gaza is not a standalone entity; it is part of the occupied territory. So, in particular, Israel cannot claim the right of self-defence against a threat that emanates from the territory it occupies, from a territory that is kept under belligerent occupation. This not only exists in the jurisprudence of the International Court of Justice in general but it has also been said in the case of the occupied Palestinian territory.”

Lambasting Israel’s bombardment of Gaza which has resulted in an alarmingly high civilian casualty, Albanese said that the country ought to have opted for law enforcement measures instead of waging a war. It should have repelled the attack, neutralised the perpetrators, and proceeded with law and order measures before ensuring that those responsible for the October 7 attacks were brought to justice.

“What is being done is wrong. But let us even imagine that there was a right to wage a war against this part of the territory under belligerent occupation. There are still rules – distinction. You cannot target civilians under military attack. Eleven thousand people killed is not enough to prove they are clearly incapable of respecting the principle of distinction. How many more people need to die? One example among many of the war crimes that I believe are being committed is the targeting of the Jabalia refugee camps, where there was allegedly one Hamas operative that Israel wanted to target and kill. In order to kill that person, the lives of hundreds of Palestinians and a significant number of hostages have been endangered. This is disrespecting the principle of distinction, the principle of proportionality, which requires any military action to be proportionate to the military goal, and the principle of precaution.”

In her speech, Albanese not only stressed the need to account for war crimes and crimes against humanity by Hamas as well as the Israeli government but also raised apprehensions over the latter’s ‘genocidal intent’ to wipe out Gaza and its residents, which she said could be culled out from the statements made by Israeli politicians and the military. In this connection, the Italian lawyer spoke about the inadequacy of the international community’s response to the war, criticising, in particular, the ‘paralysis’ of Western governments –

“The international community is almost completely paralysed. I'm being generous when I say ‘almost’, with the United Nations experiencing its most epic political and humanitarian failure since its creation. Individual member states, especially in the West are on the margins, muttering inaudible words of condemnation for Israel’s excesses at best or staying silent in fear of restraining Israel’s self-proclaimed right to self-defence, whatever it means. So here is where we are, staring into the abyss while the Palestinians face the most significant existential threat. And in a different way, the Israelis, especially Israeli Jews, as well as a society informed by human values are getting lost as the country gets enveloped in genocidal cries.”