The Palestinian-Israeli Conflict in the Context of International Law

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peration Al-Aqsa Flood was launched on Saturday, October 7 against Israel from the Gaza Strip, which has been under Israeli blockade since 2007. It has once again become necessary to address the many legal issues such as the rights and responsibilities of the Palestinian and Israeli sides in the context of international law, as well as the legality of their actions and methods.

Israel’s military response to the operation prompts a series of legal considerations. At this stage, however, the most important one is to determine within what limits and up to what extent Israel, which has invoked its right of self-defense, can legally exercise this right.

Israel’s expansive control of occupied territories

When Israel was established in 1948, it was based on a non-binding UN General Assembly resolution which allocated a territory to a Jewish state to be established on Palestinian territories. In other words, the resolution itself did not establish a Jewish state—it defined a region where the state would be established.

The resolution also defined a region where an Arab state would be established and proclaimed Jerusalem to hold international status.  With and following the establishment of Israel, Resolution 181 was never properly followed. Especially with the 1967 war, Israel went far beyond the 181 Resolution. Today, there is a large area known as the “Occupied Territories,” which Israel controls, but which are unequivocally Palestinian territories.

Israel’s occupation of Palestinian territories is omnipotent and omnipresent: the presence of Israeli soldiers, the lack of separation between East and West Jerusalem, Gaza being essentially an open-air prison. The Gaza Strip is a narrow band of Palestinian land on the shores of the Mediterranean Sea, which stretches for about 40 kilometers and at its deepest measures about 12 kilometers. It is said that about two million people try to live here in very difficult conditions. Since 2007, Israel has been imposing a blockade regarding what can go in and what can come out.

When we consider the United Nations resolutions in terms of international law, we are talking about a geography in Palestine where the borders are legally unclear, blurred, and, most of the time, even lost. These are completely illegal circumstances.

It is questionable whether Israel will be bound by the current borders. Considering that the Netanyahu government is already in a difficult position politically, it may see the current escalation as an opportunity to go to extremes and push legal limits to prove it is strong and able to provide security for Israel.

The Israeli army spokesperson has claimed that Hamas militants are hiding in schools, mosques, and residences, and, therefore, that these are all legitimate targets. Israel also claims that it has warned civilians to evacuate Gaza. The fact that Gaza is facing the possibility of coming under the de facto control of Israel and the tensions that this will later create make the situation even more worrying.

Within Israel, a strong emphasis needs to be given to the two-state solution. Currently, Israel does not even feel the need to discuss this anymore as it has established almost complete control everywhere.

The extent of Israel’s right of self-defense (under international law):

Even if Palestinian actions were to constitute an aggression and give rise to the right of self-defense, many legal limits and constraints await Israel when it declares that it is exercising its right of self-defense.

The right of self-defense is regulated in Article 51 of the UN Charter. The crucial elements emerging from this article are as follows:

• The right of self-defense is inherent, that is, every state has such a right.
• There must be a current armed attack.
• States may exercise their right to self-defense alone or in conjunction with other state(s) that may assist them.

First, as indicated in Article 51, since the right of self-defense is a right inherent in natural and customary law, there is an element of proportionality in this right. Therefore, the force used within the framework of this right must be proportionate.

Responses that are not proportionate to the action that gives rise to the right of self-defense, or that aim to punish the other party or take revenge, exceed the legal limits of the right of self-defense. In short, the response can only be sufficient in stopping and repelling an attack, and when force is used beyond this condition, the limits of the right of self-defense are exceeded. Statements made by Israeli Prime Minister Benjamin Netanyahu seem to go beyond the scope of the right of self-defense as concepts such as retribution and revenge are used.

Israel can only continue its counter-military actions until the Palestinian attack is stopped and until it reclaims its captured territories—if any. Proportionality, in this case, indicates that the response must not go beyond what is necessary to stop the attack and recover legal parts of territory.

The second point indicates that there must be an ongoing attack against Israel, so the issue of whether Hamas is actively carrying out an attack is important and needs to be evaluated.

Third, the article mentions that the right of states to self-defense can be exercised alone or together with other states. In this context, the statements made by the United States in the last few days may indicate the intent to exercise Israel’s right to self-defense collectively.

In this context, the use of warships and aircraft, which the United States claims to have sent to the region to assist Israel, presumably on the basis of the right of collective self-defense, would grossly violate the principle of proportionality. On the opposing side of the combined U.S. and Israeli armed forces is a piece of Palestinian territory where some two million people are squeezed into a narrow zone of 41 kilometers that never exceeds 12 kilometers depth.