Operation „Open Edge“ in Gaza –
legitimate self-defence or barbaric state terrorism?
Shedding light on the conflict from an international law perspective
Now and then, in justification for these assaults, Israel is invoking its inherent right to self-defence. The UN and world leaders in the West, especially the U.S., Canada and major EU-States are quick to support Israel in its claim and readily back its offensives and thereby have lost all credibility. There seems to be a broad consensus in the media as well on this issue, nobody dares to challenge this mantra.
However, public opinion seems to fundamentally disagree. Huge rallies all over the world, from Los Angeles to Tokyo, from Sydney to Oslo, from Dublin to Johannesburg and from Santiago to Dhaka show the strong disagreement of billions of people who believe otherwise. They blame Israel of committing genocide in Gaza, state terrorism and unanimously support the resistance of the Palestinians.
As has been the case so often in the past, leaders do no longer represent the peoples’ will and the media tries its best to shape public opinion in favor of the mighty. With this extreme divergence between the pouvoir constituant and the pouvoir constitué it is obvious that someone must be wrong. Numerous experts have expressed their views from a legal point of view. While all do more or less doubt the proportionality of the onslaught, few dare to question whether this massacre in Gaza is really justified with the right to self-defence. To say it straight away: It isn’t.
“War is peace”
It amounts to a travesty of justice and perversion of law, to call the killing of over 1.055 people, among them approximately 300 children and 90 % innocent civilians, the ruthless bombing of hospitals, refugee camps, playgrounds, UN shelters, churches and mosques and even graveyards, the heinous attacks on children, journalists and medics, the vicious shelling of inhabited flats, schools and infrastructure facilities and the commission of massacres in densely populated neighborhoods an act of self-defence. This utter misnomer could have also been invented by George Orwell’s deceptive “Ministry of Truth” in his 1984-masterpiece which seems to have been mistaken as a manual by the Zionist rulers. Just like the Oceania’s ruling Socialist Party in Orwell’s novel so do the Zionists and its western allies Obama, Cameron, Merkel and their likes try to make the world believe that “War is peace, freedom is slavery and ignorance is strength”.
But with Israel’s atrocities unfolding in front of the eyes of the world, their efforts to fool the people will be in vain.
The UN Charter’s jus ad bellum
The right to self-defence is an exception to the general prohibition of the use of force in Article 2 (4) Charter of the United Nations (hereinafter UN Charter). In fact, Israel’s genocide in Gaza cannot be justified by the right to self-defence under international law. The right to self-defence is enshrined in Article 51 UN Charter in Chapter VII and states as follows: “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 United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” In order to trigger the right to self-defence, there needs to be a threat to peace in the first place in the form of an “armed attack” against a state. Having shown its utter disregard for international law over the past 60 years, Israel once again makes a mockery of international law by claiming that Palestinian rockets constituted an armed attack. This assumption is as close to the truth as the Orwell’s Ministry of Truth’s slogans. Israel has been starting the aggressions in the West Bank by arbitrarily detaining hundreds of Palestinians, killing a high ranking Hamas politician and conducting illegal seizures. In fact, Israel has been and still is the sole aggressor in Palestine for the past 60 years. There simply was no attack from the Palestinian side in the first place. And even if one assumed Israel’s propaganda of Hamas rocket attacks to be true, they do not amount to an “armed” attack under Article 51 UN Charter.
An armed attack requires more than the mere use of force. According to the International Court of Justice (hereinafter “the ICJ”) in its landmark Nicaragua-decision only “the most grave forms of the use of force” constitute an armed attack. This requires violence of massive intensity. Based on the definition of aggression under UNGA Resolution 3314 (XXIX), the ICJ stated that an armed attack includes, apart from action by regular armed forces across an international border, “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to, (inter alia ) an actual armed attack conducted by regular forces, or its substantial involvement therein.” There needs to be an act of aggression of sufficient gravity. Israel cannot seriously claim that Hamas rockets posed an existential threat to its integrity. Especially given the fact that hardly any rocket makes its way through the Iron Dome. Moreover, the rockets from Gaza are a means of resistance and an act of despair. If war-mongering Israeli citizens can safely watch the bombardment of Gaza from nearby hilltops, one must be insane to actually believe that Israel faced an armed attack.
In its advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory the ICJ dismissed Israel’s attempt to justify the gross violations of international law with Article 51 UN Charta. The Court found that the construction of the apartheid-wall violated international humanitarian law (especially Article 49 (6) IVth Geneva Convention), international human rights law and that the demolition of houses, new settlement construction and land grabbing constituted an illegal annexation of land by force.
„The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order.” (para 137)
The crucial point: No attack from outside Israel
However, the right to self-defence is only triggered if the armed attack occurs from outside the state territory. The ICJ was very clear in pointing out that its international law violations cannot be justified with Israel’s inherent right to self-defence because the alleged threat did not originate from outside its territory:
„Article 51 of the Charter thus recognizes the existence of an inherent right to self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign state. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.” (Rn. 139)
This is the crucial point which is deliberately neglected by all those who fiercely try to legitimize Israel’s crimes against humanity on occupied territory with the right to self-defence. The ICJ clearly stated that a State cannot invoke its right to self-defence in occupied territories. Being the occupying power in the West Bank and in Gaza, Israel is per se the aggressor and can by its nature not claim to be attacked. Or, as Erakat rightly put it in her profound analysis: "A state cannot simultaneously exercise control over territory it occupies and militarily attack that territory on the claim that it is “foreign” and poses an exogenous national security threat." As long as Israel is illegally exercising its occupying powers on Palestinian lands all acts of “violence” by Palestinians constitute legitimate resistance, just like the resistance movements against the colonializing powers in the 20th century. Even after Israel’s formal disengagement in 2005, Gaza remained occupied territory, even though Israel claims the opposite. By exercising control over Gaza’s airspace, land borders and territorial waters, imposing an illegal naval blockade and an economic embargo and restricting free movement of persons, Israel is in effective control over the Gaza strip and in effect occupying it.
As a consequence thereof, the people of Gaza are under the protection of humanitarian law, especially the IV. Geneva Convention. These rights have been systematically violated during Operation Open Edge: Israel violated Articles 14-22, 24-26 and 76-77 IV. Geneva Convention by targeting civilians, hospitals, churches, mosques, women and children. These violations constitute war crimes according to Article 8 (2) (a) Rome Statute. Israel violated virtually all provisions of Article 8 of the Rome Statute in the present massacre against the civilian population of Gaza, by “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities, directing attacks against civilian objects, directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; enforcing the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, hospitals and places where the sick and wounded are collected, provided they are not military objectives; declaring that no quarter will be given” … and the list goes on! It is further committing crimes against humanity (Article 7) and genocide (Article 6) for the third time within a span of only 5 years in the Gaza strip!
These fundamental norms are considered to be ius cogens in international law, which means that they cannot be derogated from and any violation of these norms is considered to be a crime against the international community as a whole. This triggers the legal responsibility of all states! Assisting Israel is equal to committing war crimes. In the case of the construction of the illegal wall the International Court of Justice urged the international community
„not to render aid or assistance in maintaining the situation created by such construction. … In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.“ (Rn. 159)
World leaders have already shown that they are complicit in the genocide against Palestinians in Gaza, by consenting to Israel’s war crimes and crimes against humanity. But the law is not on their side. It’s time they acknowledge the Palestinian peoples’ inalienable right to resistance!
“I do not understand that Jens (Stoltenberg), Espen (Barth-Eide) and Inga Marte (Torhkildsen) [Norwegian Prime Minister, the Secretary of Foreign Affairs and the Secretary of Children and Equality] others who said as much right about the struggle against terrorism and political violence just a while ago - how can they be sitting sit still not using their influence - or worse: Expressing their understanding for Israel's
"right to to defend itself "?
They are attacking, as they have been attacking during the past 60 years.”
(Professor Dr. Mads Gilberts, Hero surgeon from Norway in Gaza, during the second barbaric Israeli massacre “Operation Pillars of defence”, 21.11.2012)
Germany is one of the most fervent supporters of Israels onslaught. By aiding war criminals, Germany will be responsible for yet another genocide after only 70 years. Just a week ago, a Court in The Hague found the Dutch state to be liable for 300 Srebrenica massacres deaths which had been committed by the Serbs against Bosnian muslims because dutch troops had been cooperating in the deportation of these men. Silent approval and support for war criminals does constitute a punishable crime. Maybe someone should tell the world leaders.
 See e.g. http://www.zeit.de/politik/ausland/2014-07/gaza-israel-hamas-angriffe-zivilisten-voelkerrecht-interview.
 ICJ Reports 1986, 14, para 195 (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
 ICJ Reports 2004, pp. 136.
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For further indepth legal analysis on this issue see http://www.jadaliyya.com/pages/index/8799/no-israel-does-not-have-the-right-to-self-defense- (11th July, 2014).